September 20, 2004

King’s Med. Supply, Inc. v Hereford Ins. Co. (2004 NY Slip Op 24343)

https://www.beynensonlaw.com/case-law/kings-med-supply-inc-v-hereford-ins-co-2004-ny-slip-op-24343/

Court: Appellate Term, Second Department
Decided: September 20, 2004
Citation: 2004 NY Slip Op 24343 · 5 Misc 3d 55
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 7 later decisions (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

King's Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55 (App Term, 2d Dept 2004)

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 mailing affidavit raised a triable issue whether its denial was timely, defeating the provider's summary judgment motion. The Appellate Term, Second Department, affirmed the denial of the medical-supply provider's motion. The billing manager's affidavit described duties sufficient to establish the exhibits' admissibility under CPLR 4518 (a), and those records showed that supplies were furnished; personal knowledge of delivery was unnecessary. The provider established its prima facie case and submitted an envelope allegedly containing the denial, postmarked after the payment-or-denial deadline. The insurer's claims adjuster described routine office mailing procedures indicating that the denial was mailed on the deadline, creating a factual dispute over timeliness.

Reported in New York Official Reports at King’s Med. Supply, Inc. v Hereford Ins. Co. (2004 NY Slip Op 24343)

King’s Med. Supply, Inc. v Hereford Ins. Co.

2004 NY Slip Op 24343 [5 Misc 3d 55]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 8, 2004

[*1]

King’s Medical Supply, Inc., as Assignee of Azniz Kegeyan, Appellant,
v
Hereford Insurance Company, Respondent.

Supreme Court, Appellate Term, Second Department, September 20, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Eric H. West, Long Island City, for respondent.

{**5 Misc 3d at 56} OPINION OF THE COURT

Memorandum.

Order unanimously affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, plaintiff moved for summary judgment in the amount of $980, which motion was denied by order entered September 10, 2003.

Contrary to the determination of the court below, plaintiff’s billing manager did not have to allege in his supporting affidavit that he had personal knowledge that the equipment was furnished to plaintiff’s assignor. Said affidavit set forth the billing manager’s duties so as to support the conclusion that the attached exhibits were sufficiently accurate and trustworthy to merit their admission into evidence pursuant to the business record exception to the hearsay rule (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]), and said exhibits established that the supplies were furnished to the assignor.

A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by showing that it submitted a properly completed claim form to defendant for $980 (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], [*2]2003 NY Slip Op {**5 Misc 3d at 57}51700[U] [App Term, 9th & 10th Jud Dists 2003]). It is uncontroverted that defendant had until July 17, 2003 to pay or deny plaintiff’s claim. The plaintiff’s billing manager asserted that the defendant’s denial was untimely and he submitted a photocopy of an envelope, postmarked August 29, 2003, which allegedly contained the denial form. Defendant, however, submitted the affidavit of its claims adjuster who attested to the routine procedure and practice of her office, in the regular course of its business, which indicates that the denial had been duly addressed and mailed to plaintiff on July 17, 2003. In view of the foregoing, we find that the court below properly determined that a triable issue of fact existed (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

McCabe, P.J., Covello and Tanenbaum, JJ., concur.

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 a triable issue existed on timely mailing of the denial because the insurer's adjuster described a standard office practice showing mailing on the last day while the provider produced an envelope postmarked six weeks later.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 103 (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.

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)

Held the provider established its prima facie case by showing it submitted a properly completed claim form, its billing manager not needing personal knowledge that the supplies were furnished, but the insurer raised a triable issue on timely denial.

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

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (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

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.

Cited by (11)

A label shows how the later decision treated this one.

New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. (2011 NY Slip Op 51863(U)) FollowedThe hospital's third-party affidavit failed to establish its claim forms as business records proving the services rendered.
Careplus Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 51525(U)) FollowedThe former medical-equipment fee schedule caps reimbursement at 150 percent of cost and does not use local prevailing rates.
NYU Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 22379) FollowedA hospital seeking no-fault benefits must prove the fact and amount of loss; prescribed hospital claim forms are not inherently more reliable.
Chiropractic Neurodiagnosis, PC v Travelers Indem. Co. (2006 NY Slip Op 50257(U)) FollowedDisputed proof of timely mailing of a medical-necessity denial defeated both sides' summary judgment motions.
Careplus Med. Supply, Inc v Allstate Indem. Co. (2005 NY Slip Op 51527(U)) FollowedThe insurer improperly reduced equipment claims to local prevailing rates under a fee schedule allowing 150 percent of cost.
S & M Supply Inc. v State-Wide Ins. Co. (2005 NYSlipOp 51046(U)) FollowedA provider's billing manager need not have personal knowledge that prescribed equipment was delivered to establish a prima facie case.
Careplus Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 51526(U)) FollowedThe former medical-equipment fee schedule caps reimbursement at 150 percent of cost and does not use local prevailing rates.
Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co. (2005 NYSlipOp 50648(U))The insurer failed to establish verification tolling because requests were untimely or unproved and its policy's EUO endorsement was not shown.
Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51065(U))The insurer failed to prove timely denial mailing and was precluded from asserting lack of medical necessity.
Medwide Med. Supply Inc. v Country-Wide Ins. Co. (2005 NYSlipOp 51078(U))The insurer's defenses failed because one denial was late, its medical reviews were incompetent, and assignment objections were waived.

Show all 11 citing decisions

Second Med., P.C. v GEICO (2012 NY Slip Op 50236(U))

Similar decisions

King’S Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50280(U))The provider obtained partial summary judgment on claims denied after 30 days, but disputed equipment costs barred judgment on timely denied claims.
King’s Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 51685(U))Failure to attend an IME scheduled before the insurer receives the provider's claim is not a proper basis for denying no-fault benefits.
King’s Med. Supply Inc. v Country-Wide Ins. Co. (2004 NY Slip Op 24394)A medical supplier need not prove documented cost as part of its prima facie no-fault case.
King’s Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 50451(U))The insurer's failure to send a timely follow-up verification request ended the toll and precluded its verification defense.
Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 29014)An omitted year in a mailing affidavit's jurat is a technical defect to be disregarded where no substantial right is prejudiced.