October 30, 2015

Healthy Way Acupuncture, P.C. v Farmington Cas. Co. (2015 NY Slip Op 51595(U))

https://www.beynensonlaw.com/case-law/healthy-way-acupuncture-p-c-v-farmington-cas-co-2015-ny-slip-op-51595u/

Court: Appellate Term, Second Department
Decided: October 30, 2015
Citation: 2015 NY Slip Op 51595(U) · 49 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Healthy Way Acupuncture, P.C. v Farmington Cas. Co., 49 Misc 3d 141(A), 2015 NY Slip Op 51595(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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.

Neither party established entitlement to summary judgment: the insurer's mailing proof and the provider's supporting affirmation were deficient. The insurer's affiants did not establish personal knowledge of mailing practices for denials or the facts of the action, defeating summary judgment on its medical-necessity defense. The provider relied solely on an unsigned counsel affirmation and failed to establish either an untimely denial or a timely denial that was conclusory, vague, or legally meritless. The court left open whether counsel possessed sufficient personal knowledge. The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed, leaving the provider's cross motion denied.

Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v Farmington Cas. Co. (2015 NY Slip Op 51595(U))

[*1]

Healthy Way Acupuncture, P.C. v Farmington Cas. Co.

2015 NY Slip Op 51595(U) [49 Misc 3d 141(A)]

Decided on October 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1337 Q C

Healthy Way Acupuncture, P.C. as Assignee of Richardson Liriano, Appellant,

against

Farmington Casualty Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 9, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

The affidavits defendant submitted in support of its motion for summary judgment did not establish that the affiants possessed personal knowledge of defendant’s office practices and procedures for the mailing of denial of claim forms or even of any of the facts of this action. Consequently, defendant is not entitled to summary judgment dismissing the complaint on the ground of lack of medical necessity.

Plaintiff’s contention that it is entitled to summary judgment lacks merit. Plaintiff’s cross motion was supported solely with what purported to be an “affirmation” from its counsel. Even if counsel possessed sufficient personal knowledge of the facts alleged therein, an issue which we do not pass upon, counsel did not sign the “affirmation.” In any event, plaintiff’s cross motion failed to establish either that defendant had failed to deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, plaintiff’s cross motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decision Date: October 30, 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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)

Held the provider's cross motion failed because its only support was an unsigned counsel 'affirmation' and, in any event, it did not show the claim was not timely denied or that a timely denial was conclusory or meritless.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 990 decisions on this question in the Second Department courts and the Court of Appeals, 77 (this one included) are in the same category.

Proof of mailing

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

This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer's affidavits failed to show the affiants had personal knowledge of its office practices for mailing denial of claim forms, so summary judgment on medical necessity was denied.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 256 (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. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Cited by

A label shows how the later decision treated this one.

New Chiropractic Care, P.C. v Nationwide Ins. Co. of N.Y. (2020 NY Slip Op 50652(U)) FollowedA provider may not dictate an EUO location when the insurer designates a reasonably convenient place under 11 NYCRR 65-3.5 (e).
Barshay v 21st Century Centennial Ins. Co. (2018 NY Slip Op 51605(U))The insurer's unsworn claim representative statement failed to establish timely denials based on the assignor's EUO nonappearance.
TAM Med. Supply Corp. v Hereford Ins. Co. (2018 NY Slip Op 51775(U))The provider's unsigned, unsworn verification affidavit failed to raise a triable issue as to whether its action was premature.

Similar decisions

Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51828(U))The insurer's follow-up verification requests were proper, supporting dismissal of the provider's no-fault action as premature.
New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51527(U))The parties' proof failed to establish either IME nonappearance or the provider's prima facie entitlement to summary judgment.
Healthy Way Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51865(U))The insurer's summary judgment dismissal based on the provider's failure to appear for two scheduled EUOs was affirmed.
Healthy Way Acupuncture, P.C. v One Beacon Ins. Co. (2015 NY Slip Op 50537(U))The insurer failed to prove timely mailing of its denials because its affiant did not establish knowledge of the insurer's mailing practices.
Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2017 NY Slip Op 50345(U))The insurer failed to establish that the provider's charges exceeded the workers' compensation fee schedule, despite proving a timely denial.