May 25, 2018

Irina Acupuncture, P.C. v Auto One Ins. Co. (2018 NY Slip Op 50781(U))

https://www.beynensonlaw.com/case-law/irina-acupuncture-p-c-v-auto-one-ins-co-2018-ny-slip-op-50781u/

Court: Appellate Term, Second Department
Decided: May 25, 2018
Citation: 2018 NY Slip Op 50781(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Proof of mailing · Claimant's prima facie case on motions (see the maps)

Cite as

Irina Acupuncture, P.C. v Auto One Ins. Co., 2018 NY Slip Op 50781(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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's proof of delayed receipt raised a factual issue concerning timely mailing of the provider's claim forms. The provider relied on a standard mailing practice to obtain summary judgment on its second through fourth causes of action. The insurer showed receipt more than 45 days after the services and mailing of late-submission denials within 30 days of receipt, invoking 11 NYCRR 65-2.4 (c). Although an office mailing practice creates a rebuttable presumption of receipt, the insurer's evidence raised a triable issue whether that practice resulted in timely mailing. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the provider's motion as to those causes of action.

Reported in New York Official Reports at Irina Acupuncture, P.C. v Auto One Ins. Co. (2018 NY Slip Op 50781(U))

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

Irina Acupuncture, P.C., as Assignee of Foster, Down P., Respondent,
against
Auto One Ins. Co., Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 26, 2016. The order, insofar as appealed from and as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment on the second through fourth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of plaintiff’s motion seeking summary judgment on the second through fourth causes of action are denied.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment on the second through fourth causes of action, and defendant opposed those branches of plaintiff’s motion on the ground that defendant had timely and properly denied the claims at issue based upon the late submission of the claim forms underlying those causes of action (see 11 NYCRR 65—2.4 [c]). By order entered January 26, 2016, insofar as appealed from, the Civil Court granted the branches of plaintiff’s motion at issue, finding that plaintiff had established that it had timely mailed its claim forms and that defendant’s affidavit did not rebut plaintiff’s prima facie case.

In support of its motion for summary judgment, plaintiff’s proof of its submission of the claim forms at issue to defendant was based upon a standard mailing practice and procedure (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In opposition, defendant demonstrated that it had received the claim forms more than 45 days after the services at issue had been rendered and that it had properly mailed (see id.) denial of claim forms within 30 days of its receipt of the claim forms, which denials were based upon the late submission of the claims.

Proof that documents are mailed in accordance with a standard mailing practice and procedure gives rise to a rebuttable presumption that the documents have been received (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the Civil Court’s finding, by demonstrating that it had received the claim forms at issue long after plaintiff claims to have mailed them, defendant raised a triable issue of fact as to whether plaintiff’s practices and procedures resulted in the timely mailing of the claim forms to defendant (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, Dept, 2d, 11th & 13th Jud Dists 2014]). Thus, plaintiff is not entitled to summary judgment on the second through fourth causes of action (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of plaintiff’s motion seeking summary judgment on the second through fourth causes of action are denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018

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.

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 mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received

Held that the insurer's proof it received the claim forms long after their claimed mailing raised a triable issue whether the provider's mailing practice resulted in timely mailing, defeating the provider's summary judgment.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 99 (this one included) are in the same category.

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: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Treated the provider's standard-mailing-practice proof as raising a presumption of receipt, but denied summary judgment because the insurer's proof of late receipt raised a triable issue on timely mailing.

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

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 24145) FollowedThe provider's mail-record affidavit raised a triable issue as to whether the insurer mailed its verification requests.
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.

Cited by

A label shows how the later decision treated this one.

Parisien v Travelers Ins. Co. (2019 NY Slip Op 51895(U)) FollowedConflicting proof of claim mailing and receipt precluded summary judgment and conclusive findings in the provider's favor.
Wave Med. Servs., P.C. v Hertz Vehs., LLC (2022 NY Slip Op 50908(U))CPLR 3212 (g) permits findings of undisputed facts, not a shift in the burden or order of proof at trial.
SK Prime Med. Supply v MVAIC (2021 NY Slip Op 51200(U))The provider's proof of mailing and MVAIC's proof of nonreceipt required a hearing to determine the ground for dismissal.
Parisien v 21st Century Ins. Co. (2019 NY Slip Op 50275(U))The insurer's late EUO follow-up letter defeated summary judgment on one claim, while disputed receipt defeated summary judgment on another.

Similar decisions

Irina Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51817(U))The insurer established that the no-fault action was premature because timely requested verification remained outstanding.
Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co. (2017 NY Slip Op 51461(U))The insurer's first IME was not scheduled to be held within 30 days of receipt of the claims, warranting judgment for the provider.
Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 50939(U))The insurer's untimely follow-up EUO notice rendered its denial untimely and precluded the nonappearance defense.
Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50829(U))The insurer failed to prove timely mailing of its fee-schedule denial covering the provider's second through fifth causes of action.
Acupuncture Now, P.C. v Travelers Ins. Co. (2019 NY Slip Op 51255(U))EUO requests that omit the time and place are delay letters and do not establish timely EUO scheduling.