April 19, 2016

Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50649(U))

https://www.beynensonlaw.com/case-law/great-health-care-chiropractic-p-c-v-unitrin-direct-ins-co-2016-ny-slipop-50649u/

Court: Appellate Term, Second Department
Decided: April 19, 2016
Citation: 2016 NY Slip Op 50649(U) · 51 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co., 51 Misc 3d 141(A), 2016 NY Slip Op 50649(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's owner affidavit raised a triable issue about timely submission of the claim despite the insurer's evidence of nonreceipt. The insurer obtained summary judgment dismissing the assigned no-fault action on the ground that it had never received the claim. Although its claims examiner's affidavit established nonreceipt prima facie, the provider's opposition supplied an affidavit sufficient to create a presumption of timely mailing and receipt under Residential Holding Corp. v Scottsdale Ins. Co. The competing proof left a factual issue concerning whether the claim had been timely submitted. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50649(U))

[*1]

Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co.

2016 NY Slip Op 50649(U) [51 Misc 3d 141(A)]

Decided on April 19, 2016

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 19, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1697 Q C

Great Health Care Chiropractic, P.C. as Assignee of JUNIOR NOEL, Appellant,
against
Unitrin Direct Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had never received the claim at issue.

Although the affidavit of defendant’s claims examiner established prima facie that defendant had not received the claim at issue, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the claim form had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether the claim at issue was timely submitted to defendant.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: April 19, 2016

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received

Held the insurer's showing of non-receipt was met by the provider owner's affidavit raising a presumption that the claim was timely mailed and received, leaving a triable issue on timely submission.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.

Similar decisions

Great Health Care Chiropractic, P.C. v Unitrin Advantage Ins. Co. (2015 NY Slip Op 50782(U))The insurer failed to prove timely mailing of EUO scheduling letters, defeating summary judgment based on the assignor's alleged nonappearance.
Great Health Care Chiropractic, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50858(U))The provider's owner's affidavit raised a factual issue as to receipt of requested verification and whether the action was premature.
Great Health Care Chiropractic, P.C. v Hanover Ins. Co. (2014 NY Slip Op 50359(U))The insurer's fraudulent-procurement defense was precluded because it failed to establish a timely denial on that ground.
Advanced Chiropractic of NY, P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 51409(U))The provider's proof of mailing raised a factual issue despite the insurer's proof that it had not received the claims.
Great Health Care Chiropractic, P.C. v Nationwide Ins. (2014 NY Slip Op 51812(U))The provider's challenges to the insurer's affidavit and delay letters did not establish that its claims were untimely denied.