October 29, 2021

Impulse Imaging, P.C. v State Farm Fire & Cas. Co. (2021 NY Slip Op 51031(U))

https://www.beynensonlaw.com/case-law/impulse-imaging-p-c-v-state-farm-fire-cas-co-2021-ny-slip-op-51031u/

Court: Appellate Term, Second Department
Decided: October 29, 2021
Citation: 2021 NY Slip Op 51031(U) · 73 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Staged accidents, lack of coverage Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Impulse Imaging, P.C. v State Farm Fire & Cas. Co., 73 Misc 3d 135(A), 2021 NY Slip Op 51031(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

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.

A staged-accident coverage defense requires no denial and must be considered before granting a provider summary judgment. The Civil Court granted the provider's motion after finding the insurer's EUO defense unpreserved, but did not address the insurer's separate staged-accident defense. The provider also failed to establish prima facie entitlement to judgment because its proof did not show untimely denials or timely denials that were conclusory, vague, or legally meritless. Following Central Gen. Hosp. v Chubb Group of Ins. Cos., the coverage defense was not precluded. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied the provider's motion, and remitted for determination of the insurer's pending summary judgment branch asserting staged-accident noncoverage.

Reported in New York Official Reports at Impulse Imaging, P.C. v State Farm Fire & Cas. Co. (2021 NY Slip Op 51031(U))

[*1]

Impulse Imaging, P.C. v State Farm Fire & Cas. Co.

2021 NY Slip Op 51031(U) [73 Misc 3d 135(A)]

Decided on October 29, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2021

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2018-2519 K C

Impulse Imaging, P.C., as Assignee of Denzel Gittens, Respondent,

against

State Farm Fire and Casualty Co., Appellant.

Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered October 12, 2018. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment and failed to determine the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that there was a lack of coverage.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied, and the matter is remitted to the Civil Court to determine the undecided branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that there was a lack of coverage.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on two grounds: (1) that plaintiff’s assignor had failed to appear for examinations under oath (EUOs), a defense which is subject to preclusion (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]), and (2) that there was a lack of coverage in that the incident from which the alleged injuries arose was a staged accident, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). By order entered October 12, 2018, the Civil Court stated that plaintiff had made a prima facie showing of its entitlement to summary judgment and that defendant had “failed to rebut same” because defendant’s toll of its time to pay or deny plaintiff’s claim had expired due to defendant’s failure to timely send a follow-up EUO scheduling letter. The Civil Court then granted plaintiff’s motion for summary judgment and stated that it was denying defendant’s cross motion “in full,” but without mentioning defendant’s staged accident defense, [*2]for which a toll is not necessary.

Defendant correctly argues that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as plaintiff failed to establish that its claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were 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 Dept, 2d, 11th & 13th Jud Dists 2011]). Therefore, plaintiff’s motion should have been denied.

Even if plaintiff had made a prima facie showing, which defendant failed to rebut, plaintiff’s motion should, in any event, not have been granted without consideration of defendant’s staged accident defense, a defense which does not require a denial of claim. However, the court did not mention, much less discuss, the staged accident defense and granted plaintiff’s motion on the ground that defendant had not “preserved the EUO non-appearance defense.” Thus, while the court stated that it was denying defendant’s cross motion “in full,” it appears that the court did not consider the branch of defendant’s cross motion seeking to dismiss the complaint based on defendant’s nonprecludable staged accident defense. Therefore, we remit the matter to the Civil Court to determine that branch, which remains pending and undecided.

Accordingly, the order, insofar as appealed from, is reversed, plaintiff’s motion for summary judgment is denied, and the matter is remitted to the Civil Court to determine the undecided branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that there was a lack of coverage.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 29, 2021

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.

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 overdue (not paid or timely denied)

Held the provider failed its prima facie burden because it did not show the claims had not been timely denied or that the timely denials were conclusory, vague or without merit.

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, 246 (this one included) are in the same category.

Cited in this decision

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

Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589)The insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
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)The 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))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Parisien v Esurance (2023 NY Slip Op 51235(U))The insurer's founded belief that the collision was staged did not establish its coverage defense through sufficient admissible evidence.
Flatlands Med., P.C. v Allstate Ins. Co. (2012 NY Slip Op 50582(U))A provider's failure to object timely to discovery demands does not require disclosure of privileged or palpably improper matters.
Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50997(U))The provider failed to show a timely objection to EUO requests and could not challenge their reasonableness in litigation.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50963(U))The insurer proved its IME nonappearance defense for 13 claims but failed to establish timely denial of the fourteenth.
Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U))The insurer failed to establish timely denial mailing, and the provider failed to establish prima facie entitlement to payment.