December 15, 2006

Mega Supply & Billing, Inc. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52504(U))

https://www.beynensonlaw.com/case-law/mega-supply-billing-inc-v-new-york-cent-mut-fire-ins-co-2006-ny-slip-op-52504u/

Court: Appellate Term, Second Department
Decided: December 15, 2006
Citation: 2006 NY Slip Op 52504(U) · 14 Misc 3d 128(A)
Posture: Summary judgment
Issues: Provider's prima facie case Timeliness and preclusion
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Mega Supply & Billing, Inc. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 128(A), 2006 NY Slip Op 52504(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2006)

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.

Neither party established summary judgment entitlement because the provider failed to prove claim mailing and the insurer failed to prove timely denial. The denial attached to the provider's papers did not cure its deficiency because it omitted the claim amount and otherwise failed to identify the claim. The insurer's claims representative supplied neither personal knowledge of actual timely mailing nor a sufficiently detailed standard mailing procedure. The insurer therefore failed to establish mailing within 30 days and that its proposed defense was not precluded. The Appellate Term, Second Department, affirmed denial of both motions; a separate concurrence agreed only with the result and expressed disagreement with propositions in the cited cases.

Reported in New York Official Reports at Mega Supply & Billing, Inc. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52504(U))

[*1]

Mega Supply & Billing, Inc. v New York Cent. Mut. Fire Ins. Co.

2006 NY Slip Op 52504(U) [14 Misc 3d 128(A)]

Decided on December 15, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2005-1852 K C. NO. 2005-1852 K C

Mega Supply & Billing, Inc. a/a/o Ganesh P. Mohabir, Appellant-Respondent,
against
New York Central Mutual Fire Insurance Co., Respondent-Appellant.

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered August 17, 2005. The order denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider did not establish a prima facie entitlement to summary judgment because it failed to prove mailing of the subject claim (cf. Mary Immaculate
Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 51701[U] [App Term, 2d & 11th Jud Dists]). The deficiency was not cured by defendant’s denial of claim form attached to plaintiff’s papers since it failed to set forth the amount of the claim or otherwise establish that it related to the subject claim. Accordingly, plaintiff failed to shift the burden to defendant upon its motion for summary judgment.

With respect to defendant’s cross appeal from so much of the order as denied its cross motion for summary judgment, defendant failed to establish that its claim denial form was mailed within the prescribed 30-day period. The affidavit of defendant’s claims representative was insufficient to establish proper mailing since there is no allegation by one with personal knowledge that the denial was actually timely mailed. Nor did the affidavit contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of [*2]mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 574 [2006]; Nyack Hosp. v Metropolitan Prop & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, defendant’s cross motion for summary judgment was
properly denied since defendant failed to establish that the proffered defense was not precluded.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: December 15, 2006

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.

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 submitted (mailed to and received by the insurer)

Held the provider failed its prima facie burden because it did not prove mailing of the claim, and the insurer's denial form did not cure this because it did not state the amount or tie to the claim.

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

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response

Held the provider did not prove mailing of its claim, which the insurer's unspecific denial form did not cure, and the insurer's claims representative's affidavit likewise failed to prove timely mailing of its denial.

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

Cited in this decision

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

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

Similar decisions

Mega Supply & Billing, Inc. v Allstate Indemnity Co. (2007 NY Slip Op 51515(U))The provider's summary judgment award was reversed because its employee's affidavit did not establish admissibility of the claim forms.
Mega Supply & Billing Inc. v Auto One Ins. Co. (2006 NY Slip Op 52304(U))The provider's corporate officer failed to establish personal knowledge sufficient to authenticate the motion exhibits as business records.
Mega Supply & Billing, Inc. v Clarendon Natl. Ins. Co. (2007 NY Slip Op 50377(U))The provider's conclusory affidavit failed to establish a business-records foundation for its summary judgment evidence.
Mega Supplies Billing, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51418(U))The insurer's denial was not fatally defective, and its unrebutted affirmed peer review established lack of medical necessity for the supplies.
Mega Supply & Billing, Inc. v Larendon Natl. Ins. Co. (2010 NY Slip Op 51452(U))The provider failed to rebut the insurer's peer review or justify deferring summary judgment to obtain the reviewer's underlying records.