May 18, 2015
Health Needles Acupuncture, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50776(U))
https://www.beynensonlaw.com/case-law/health-needles-acupuncture-p-c-v-allstate-ins-co-2015-ny-slip-op50776u/
- Decided
- May 18, 2015
- Citation
- 2015 NY Slip Op 50776(U) · 47 Misc 3d 149(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Proof of mailing · Claimant's prima facie case on motions (see the maps)
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.
Reported in New York Official Reports at Health Needles Acupuncture, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50776(U))
| Health Needles Acupuncture, P.C. v Allstate Ins. Co. |
| 2015 NY Slip Op 50776(U) [47 Misc 3d 149(A)] |
| Decided on May 18, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2642 K C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered September 6, 2012. The order denied plaintiff’s motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment.
In support of its motion, plaintiff submitted an affidavit executed by plaintiff’s owner which demonstrated, prima facie, that the claim forms at issue had been mailed to and received by defendant, and that defendant had failed to pay or deny the claim within the prescribed 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country—Wide Ins. Co., 114 AD3d 33, 35 [2013]). Consequently, plaintiff established its prima facie entitlement to judgment as a matter of law based on the untimeliness of the denials. However, the affidavits submitted by defendant in opposition to plaintiff’s motion sufficiently described defendant’s standard mailing practices and procedures to establish the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As defendant raised a triable issue of fact (see NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190 [2011]), plaintiff’s motion for summary judgment was properly denied.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: May 18, 2015
Legal questions (2)
Questions 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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice
Held the insurer's opposing affidavits sufficiently described its standard mailing practices to establish timely mailing of the denials, raising a triable issue that defeated the provider's motion.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider owner's affidavit showed the claims were mailed and received and not paid or denied within 30 days, but the motion failed because the insurer raised a triable issue.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- NYU-Hospital for Joint Diseases v Esurance Ins. Co. (2011 NY Slip Op 04436) FollowedThe insurer raised factual issues about timely denial and whether the assignor's injury resulted from driving while intoxicated.
Similar decisions
- Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U))The insurer failed to establish timely mailing of denials supporting its defense that the assignor missed scheduled IMEs. The insurer sought summary judgment dismissing the first through fourth causes of action in an assigned no-fault benefits action.
- Health Needles Acupuncture, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51831(U))A letter merely announcing delay pending an assignor's IME and EUO does not toll the time to pay or deny a no-fault claim.
- Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50830(U))The insurer failed to establish timely mailing of its denials asserting that the provider's charges exceeded the fee schedule.
- Healing Art Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51821(U))The insurer failed to prove timely denials preserving its fee-schedule defense, and the provider failed to establish entitlement to summary judgment.
- KHL Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51709(U))The insurer failed to prove timely mailing of verification requests and denials, and the provider failed to establish its prima facie case.