February 16, 2024

JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co. (2024 NY Slip Op 50203(U))

https://www.beynensonlaw.com/case-law/jsj-anesthesia-pain-mgt-pllc-v-nationwide-ins-co-2024-ny-slip-op-50203u/

Court: Appellate Term, Second Department
Decided: February 16, 2024
Citation: 2024 NY Slip Op 50203(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co., 2024 NY Slip Op 50203(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024)

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 policy exhaustion because its claim specialist did not lay a sufficient foundation for the payment log. In the provider's assigned-benefits action, the insurer had to show that it paid the policy limits in accordance with 11 NYCRR 65-3.15. Its payment log lacked a sufficient foundation under CPLR 4518 (a), leaving it unable to establish that any listed payments had been made. The provider also failed to establish that its claim had not been timely denied or that a timely denial was conclusory, vague or legally without merit. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment motion and affirmed denial of the provider's cross motion.

Reported in New York Official Reports at JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co. (2024 NY Slip Op 50203(U))

[*1]

JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co.

2024 NY Slip Op 50203(U)

Decided on February 16, 2024

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 16, 2024

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

PRESENT: : CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, PHILLIP HOM, JJ
2023-655 K C

JSJ Anesthesia Pain Management, PLLC, as Assignee of Gardner-Bowlyn, Janet, Appellant,

against

Nationwide Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Brian Rayhill (Ivy Cherian and Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated April 18, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denying plaintiff’s cross-motion for summary judgment.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JPC Med., P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 136[A], 2022 NY Slip Op 50562[U], *1 [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2022]; JPF Med. Servs., P.C. v Nationwide Ins., 69 Misc 3d 127[A], 2020 NY Slip Op 51122[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.

Plaintiff’s cross-motion for summary judgment was properly denied, as plaintiff failed to establish that the claim at issue 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 a timely denial of claim form that was 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]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

BUGGS, J.P., OTTLEY and HOM, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 16, 2024

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's cross motion properly denied because it failed to show the claim had not been timely denied or that the timely denial was conclusory, vague or without merit as a matter of law.

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

Cited in this decision

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

Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2021 NY Slip Op 08159)The insurer failed to support its policy-exhaustion defense with admissible evidence concerning the provider's claim.
JPC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50562(U))The insurer failed to establish policy exhaustion because its claim specialist did not lay a sufficient foundation for the payment log.
JPF Med. Servs., P.C. v Nationwide Ins. (2020 NY Slip Op 51122(U))The insurer failed to prove policy exhaustion because its payment log lacked a sufficient business-record foundation.
Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51815(U))The insurer failed to prove that Florida law applied or that admissible payment records established exhaustion of policy limits.
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.

Cited by

A label shows how the later decision treated this one.

Pak Hong Sik, MD, Med. Care, P.C. v Mid-Century Ins. Co. (2024 NY Slip Op 50804(U)) FollowedThe provider's challenge to the insurer's fee-schedule defense was raised for the first time on appeal and was not considered.

Similar decisions

LR Med., PLLC v Nationwide Ins. Co. (2024 NY Slip Op 50204(U))The insurer's summary judgment motion based on policy exhaustion was denied on appeal.
Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50069(U))The insurer failed to establish policy exhaustion because its claims specialist laid an insufficient foundation for the payment log.
MSB Physical Therapy v Nationwide Ins. (2022 NY Slip Op 51381(U))The insurer failed to establish timely denial after alleged EUO nonappearances, and the provider failed to establish entitlement to summary judgment.
Chiropractic Assoc. of Richmond Hill, P.C. v Nationwide Gen. Ins. Co. (2025 NY Slip Op 50506(U))The insurer failed to establish that policy limits were exhausted before it received the provider's completed claims.
JSJ Anesthesia Pain Mgt., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50064(U))The insurer's summary judgment motion based on policy exhaustion was denied on appeal, while the provider's cross-motion remained denied.