April 16, 2015

Healthy Way Acupuncture, P.C. v One Beacon Ins. Co. (2015 NY Slip Op 50537(U))

https://www.beynensonlaw.com/case-law/healthy-way-acupuncture-p-c-v-one-beacon-ins-co-2015-ny-slip-op50537u/

Court: Appellate Term, First Department
Decided: April 16, 2015
Citation: 2015 NY Slip Op 50537(U) · 47 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Healthy Way Acupuncture, P.C. v One Beacon Ins. Co., 47 Misc 3d 137(A), 2015 NY Slip Op 50537(U) (App Term, 1st Dept 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.

The insurer failed to prove timely mailing of its denials because its affiant did not establish knowledge of the insurer's mailing practices. The mailing affidavit came from an employee of a nonparty insurance group only remotely related to the insurer. It did not explain the basis for personal knowledge of the insurer's internal mailing procedures during the relevant period, particularly because the affiant began working for that group after the denial was allegedly mailed. The affidavit therefore lacked probative value. The Appellate Term, First Department, affirmed the order, insofar as appealed from, leaving in place the partial denial of the insurer's summary judgment motion dismissing the provider's no-fault action.

Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v One Beacon Ins. Co. (2015 NY Slip Op 50537(U))

[*1]

Healthy Way Acupuncture, P.C. v One Beacon Ins. Co.

2015 NY Slip Op 50537(U) [47 Misc 3d 137(A)]

Decided on April 16, 2015

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570035/15

Healthy Way Acupuncture, P.C., a/a/o Egnys Garcia, Plaintiff-Respondent,
against
One Beacon Ins. Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.), entered March 19, 2014, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joseph E. Capella, J.), entered March 19, 2014, insofar as appealed from, affirmed, with $10 costs.

This action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal, since defendant-insurer failed to establish the proper and timely mailing of the denial of claim forms at issue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564—565 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). The affidavit submitted by defendant to establish proof of mailing, identifying the affiant as an employee of nonparty Tower Insurance Group (“Tower”), an entity remotely related to defendant, lacked probative value, since it failed to set forth the basis of affiant’s personal knowledge of the internal mailing practices and procedures of defendant during the pertinent period (see Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 253-254 [2011]), especially given that affiant began his employment with Tower after the denial at issue was allegedly mailed by defendant (see Nocella v Fort Dearborn Life Ins. Co. of NY, 99 AD3d 877, 879 [2012]). “It is the burden of the proponent of an affidavit to demonstrate the basis of the affiant’s knowledge . . . and here, defendant failed to meet that burden” (Gogos v Modell’s Sporting Goods, Inc., 87 AD3d at 254).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur

Decision Date: April 16, 2015

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

Held the insurer failed to prove mailing of its denials because its affiant, employed by a related nonparty and hired after the mailing, showed no basis for personal knowledge of its mailing practices.

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 161 decisions on this question in the First Department courts and the Court of Appeals, 23 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235) FollowedThe insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.

Cited by

J.O.V. Acupuncture, P.C. v Amex Assur. Co. (2017 NY Slip Op 50347(U))The insurer failed to establish proper and timely mailing of its denial through an affidavit from a nonparty's employee.

Similar decisions

Healthy Way Acupuncture, P.C. v Farmington Cas. Co. (2015 NY Slip Op 51595(U))Neither party established entitlement to summary judgment: the insurer's mailing proof and the provider's supporting affirmation were deficient.
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.
Healthy Way Acupuncture, P.C. v Allstate Ins. Co. (2014 NY Slip Op 50841(U))An assignor's failure to attend requested IMEs permits retroactive denial of all claims, regardless of denial timeliness or initial grounds.
Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51709(U))The insurer's contradictory submissions raised factual issues about timely and proper fee-schedule denials.
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.