December 8, 2006
Impulse Chiropractic, P.C. v Travelers Ins. Co. (2006 NY Slip Op 52371(U))
https://www.beynensonlaw.com/case-law/impulse-chiropractic-p-c-v-travelers-ins-co-2006-ny-slip-op-52371u/
- Decided
- December 8, 2006
- Citation
- 2006 NY Slip Op 52371(U) · 14 Misc 3d 126(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- Claimant's prima facie case on motions · Proof of mailing (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 Impulse Chiropractic, P.C. v Travelers Ins. Co. (2006 NY Slip Op 52371(U))
| Impulse Chiropractic, P.C. v Travelers Ins. Co. |
| 2006 NY Slip Op 52371(U) [14 Misc 3d 126(A)] |
| Decided on December 8, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2005-1789 K C. NO. 2005-1789 K C
against
TRAVELERS INSURANCE COMPANY, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered August 31, 2005. The order denied plaintiff’s motion for summary judgment.
Order affirmed without costs.
In an action to recover assigned first-party no-fault benefits, a plaintiff provider establishes a prima facie case by presenting proof that it submitted statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits is overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the
instant case, the affidavit executed by plaintiff’s corporate officer failed to establish submission of the claim form. Plaintiff’s assertion that defendant’s letter, annexed to the moving papers, acknowledging receipt of a claim constitutes an admission that the subject claim form was received, is without merit. Inasmuch as the letter does not set forth the amount sought by the claim form which defendant received, plaintiff did not establish its prima facie entitlement to summary judgment since it did not adequately establish that it submitted the subject claim form to defendant (see A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the burden never shifted to defendant (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Liquore v Tri-Arc Mfg. Co., 32 AD3d 905 [2006]).
[*2]
Weston Patterson, J.P., and Rios, J., concur.
Golia, J., concurs in a separate memorandum.
Golia, J., concurs with the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: December 8, 2006
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.
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 failed to show submission of the claim form because its officer's affidavit was inadequate and the insurer's acknowledgment letter did not state the amount of the claim received.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response
Held the provider did not prove submission of its claim form because its officer's affidavit failed to establish it and the insurer's acknowledgment letter, which stated no amount, did not show receipt of that form.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359) FollowedThe hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U)) FollowedThe insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
Cited by
A label shows how the later decision treated this one.
- Boai Zhong Yi Acupuncture Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 52516(U)) FollowedThe provider failed to establish submission of its claim, and the insurer's delay letter did not identify the claim at issue.
Similar decisions
- Impulse Chiropractic P.C. v Travelers Ins. Co. (2006 NY Slip Op 52469(U))The provider failed to prove submission of its claims, and the insurer's delay letters did not establish receipt of the particular claims.
- Impulse Chiropractic, P.C. v Countrywide Ins. (2007 NY Slip Op 52293(U))The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-record foundation.
- Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50498(U))The insurer's Maryland affidavit lacked a certificate of conformity, and the provider preserved its admissibility objection.
- Contemporary Acupuncture P.C. v Travelers Ins. Co. (2006 NY Slip Op 51278(U))The provider failed to establish claim submission because it proved neither actual mailing nor a reliable office mailing practice.
- Impulse Chiropractic, P.C. v Kemper Ins. Co. (2007 NY Slip Op 50665(U))The insurer failed to raise a triable IME nonappearance issue because it lacked personal-knowledge proof of mailing and nonappearance.