March 24, 2017

J.O.V. Acupuncture, P.C. v Amex Assur. Co. (2017 NY Slip Op 50347(U))

https://www.beynensonlaw.com/case-law/j-o-v-acupuncture-p-c-v-amex-assur-co-2017-ny-slip-op-50347u/

Court: Appellate Term, First Department
Decided: March 24, 2017
Citation: 2017 NY Slip Op 50347(U) · 55 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

J.O.V. Acupuncture, P.C. v Amex Assur. Co., 55 Misc 3d 127(A), 2017 NY Slip Op 50347(U) (App Term, 1st Dept 2017)

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 establish proper and timely mailing of its denial through an affidavit from a nonparty's employee. In the provider's action for first-party no-fault benefits, the insurer sought summary judgment dismissing the complaint. The mailing affiant identified employment with a nonparty but showed neither a relationship between that entity and the insurer nor personal knowledge of the insurer's internal mailing practices during the relevant period. The affidavit therefore lacked probative value. The Appellate Term, First Department, affirmed the order denying the insurer's motion for summary judgment.

Reported in New York Official Reports at J.O.V. Acupuncture, P.C. v Amex Assur. Co. (2017 NY Slip Op 50347(U))

[*1]

J.O.V. Acupuncture, P.C. v Amex Assur. Co.

2017 NY Slip Op 50347(U) [55 Misc 3d 127(A)]

Decided on March 24, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2017

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570522/16

J.O.V. Acupuncture, P.C., a/a/o Candida Espaillat, Plaintiff-Respondent,

against

Amex Assurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered February 26, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered February 26, 2015, 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 form at issue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564—565 [2005], lv denied 5 NY3d 713 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). The affidavit submitted by defendant to establish proof of mailing of the denial, identifying the affiant as an employee of nonparty Ameriprise Auto & Home [Ameriprise], lacked probative value, since affiant failed to show any relationship between Ameriprise and defendant, or any 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]; 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]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 24, 2017

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 proper and timely mailing of its denial because the affiant, employed by a nonparty company, showed no relationship to the insurer or 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 133 decisions on this question in the First Department courts and the Court of Appeals, 20 (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

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

Cited by

A label shows how the later decision treated this one.

Big Apple Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2018 NY Slip Op 51659(U)) FollowedThe insurer failed to prove nonreceipt of requested verification within 120 days through admissible affidavits.

Similar decisions

Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))The insurer's initial EUO request was a nullity for the first claim because it was sent more than 30 days after receipt of that claim.
Oriental World Acupuncture, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 52181(U))The insurer established that the provider's action was premature because requested verification remained outstanding when suit began.
A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
Healthy Way Acupuncture, P.C. v Amica Mut. Ins. Co. (2015 NY Slip Op 51623(U))The insurer established a proper acupuncture fee-schedule denial; a mistaken year in the notary's jurat affected no substantial right.
Essential Acupuncture Servs., P.C. v Ameriprise Auto & Home Ins. (2012 NY Slip Op 52404(U))The insurer failed to prove timely mailing of EUO letters and therefore failed to establish that its EUO defense escaped preclusion.