May 10, 2019

Metro Psychological Servs., P.C. v Allstate Ins. Co. (2019 NY Slip Op 50748(U))

https://www.beynensonlaw.com/case-law/metro-psychological-servs-p-c-v-allstate-ins-co-2019-ny-slip-op50748u/

Court: Appellate Term, Second Department
Decided: May 10, 2019
Citation: 2019 NY Slip Op 50748(U) · 63 Misc 3d 151(A)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Metro Psychological Servs., P.C. v Allstate Ins. Co., 63 Misc 3d 151(A), 2019 NY Slip Op 50748(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 timely mailing of its denials, and the provider failed to establish entitlement to payment as a matter of law. In the provider's action for assigned no-fault benefits, the insurer's papers did not demonstrate that it was free from preclusion of its asserted defenses, requiring denial of its summary judgment motion. The provider also failed to show that the claims had not been timely denied or that timely denials were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's motion and affirmed the denial of the provider's cross motion.

Reported in New York Official Reports at Metro Psychological Servs., P.C. v Allstate Ins. Co. (2019 NY Slip Op 50748(U))

[*1]

Metro Psychological Servs., P.C. v Allstate Ins. Co.

2019 NY Slip Op 50748(U) [63 Misc 3d 151(A)]

Decided on May 10, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 10, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2907 K C

Metro Psychological Services, P.C., as Assignee of Adams Kenneth, Appellant,
against
Allstate Insurance Company, Respondent.

Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 19, 2016. 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 which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Plaintiff correctly contends that defendant’s papers failed to establish, as a matter of law, that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defenses. Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s further contention, plaintiff failed to establish that the claims 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 timely denials of claim that were 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]). As a result, plaintiff’s cross motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant’s motion for summary [*2]judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 10, 2019

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 overdue (not paid or timely denied)

Held the provider's cross motion properly denied because it failed to show the claims were not timely denied or that timely denials were conclusory, vague or without merit.

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

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's papers failed to establish timely mailing of its denial of claim forms, so it did not show it was not precluded and its summary judgment motion was denied.

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, 260 (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.
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.

Similar decisions

All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50307(U))The insurer failed to prove timely mailing of IME scheduling letters and therefore failed to establish tolling of its claim deadline.
Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
Metro Psychological Servs., P.C. v Auto One Ins. Co. (2016 NY Slip Op 51376(U))The insurer's summary judgment motion was denied because a triable issue remained concerning medical necessity.
Comprehensive Care Physical Therapy, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50848(U))The insurer failed to establish timely mailing of denials supporting its IME nonappearance and fee schedule defenses.
Metro Psychological Servs., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51614(U))The insurer's affidavit failed to establish that the insured vehicle was not involved in the accident, although its motion was timely.