December 14, 2015

Natural Therapy Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 25425)

https://www.beynensonlaw.com/case-law/natural-therapy-acupuncture-p-c-v-geico-ins-co-2015-ny-slip-op-25425/

Court: Appellate Term, Second Department
Decided: December 14, 2015
Citation: 2015 NY Slip Op 25425 · 50 Misc 3d 107
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues Discovery and procedure Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Natural Therapy Acupuncture, P.C. v Geico Ins. Co., 50 Misc 3d 107 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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.

An option to arbitrate no-fault disputes supports a stay upon a motion to compel arbitration, rather than dismissal of the action. The New Jersey policy's choice-of-law clause governed. NJ Stat Ann § 39:6A-5.1 (a) and NJ Admin Code § 11:3-5.1 (a) made dispute resolution optional, as did the policy. Because the insurer had not moved to compel arbitration under CPLR 7503 (a), its dismissal cross motion failed. The provider also failed to establish medical necessity or improper nonpayment within 60 days after written notice of a covered loss and its amount under NJ Stat Ann § 39:6A-5 (g). The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and affirmed denial of the provider's motion.

Reported in New York Official Reports at Natural Therapy Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 25425)

Natural Therapy Acupuncture, P.C. v Geico Ins. Co.

2015 NY Slip Op 25425 [50 Misc 3d 107]

Accepted for Miscellaneous Reports Publication

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

As corrected through Wednesday, March 30, 2016

[*1]

Natural Therapy Acupuncture, P.C., as Assignee of Leila Milfort, Appellant,
v
Geico Ins. Co., Respondent.

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 14, 2015

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.

Law Office of Printz & Goldstein, Woodbury (Bryan P. Fauci of counsel), for respondent.

{**50 Misc 3d at 108} OPINION OF THE COURT

Memorandum.

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

Plaintiff’s assignor was injured in a motor vehicle accident while riding in a vehicle which was insured by a New Jersey automobile insurance policy issued by defendant. Thereafter, plaintiff commenced this action to recover, among other things, assigned first-party no-fault benefits for the services it had rendered to its assignor, alleging that its claims were unpaid. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that the dispute had to be resolved by arbitration. In opposition to plaintiff’s motion and in support of the cross motion, defendant addressed only the merits of plaintiff’s motion, made no arguments in support of its cross motion, and did not move to compel arbitration. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Since the insurance policy at issue contains a provision that “[t]he policy and any amendments and endorsements are to be interpreted pursuant to the laws of the state of New Jersey,” New Jersey law applies (see Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).^[FN*] In Bay Med. P.C., this court held that dispute resolution is not mandatory pursuant to NJ Stat Ann § 39:6A-5.1 (a), as implemented by NJ Admin Code § 11:3-5.1 (a), which provides that a dispute regarding the recovery of no-fault benefits may be submitted to dispute{**50 Misc 3d at 109} resolution upon the initiative of either party to the [*2]dispute (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273, 982 A2d 1, 2-3 [2009]). The insurance policy in question also states that a matter may be submitted to dispute resolution “on the initiative of any party to the dispute.” However, the existence of an option to arbitrate is not a ground for dismissal of a court action; such an option—if exercised by way of a motion to compel arbitration—is a ground to stay the court action (see CPLR 7503 [a]). As defendant has not moved to compel arbitration, defendant’s cross motion for summary judgment dismissing the complaint should have been denied (see Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U]; Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co., 38 Misc 3d 140[A], 2013 NY Slip Op 50219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Inasmuch as plaintiff failed to establish, in the first instance, the medical necessity of the services rendered (see Elkins v New Jersey Mfrs. Ins. Co., 244 NJ Super 695, 583 A2d 409 [1990]) and failed to show that defendant did not properly pay any claim within 60 days after it had been furnished with written notice of the fact of a covered loss and the amount of same (see NJ Stat Ann § 39:6A-5 [g]), under New Jersey law, plaintiff’s motion for summary judgment was properly denied.

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

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Footnotes

Footnote *:Contrary to plaintiff’s contention, the underwriter’s affidavit that defendant submitted in support of its cross motion laid a sufficient foundation to allow consideration of the exhibits annexed to the cross motion.

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: claim forms not shown admissible as business records / merits of claim not proved

Held the provider's summary judgment motion properly denied because, under the governing New Jersey law, it failed to establish medical necessity in the first instance and failed to show the claims were not paid within 60 days.

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

Cited in this decision

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

Bay Med. P.C. v Geico Ins. Co. (2013 NY Slip Op 52084(U)) FollowedA policy requiring interpretation under New Jersey law invokes that state's substantive law, rather than its conflict rules.
Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 50219(U)) FollowedNew Jersey law governed the provider's claim, and its failure to prove medical necessity defeated its summary judgment motion.

Cited by

A label shows how the later decision treated this one.

St. Chiropractic, P.C. v Geico Gen. Ins. Co. (2016 NY Slip Op 26271) FollowedAn option to arbitrate a no-fault dispute does not furnish a ground to dismiss a court action over that dispute.
Sharp View Diagnostic Imaging, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 50855(U))The insurer failed to prove exhaustion of applicable coverage, and the provider failed to establish its entitlement to summary judgment.

Similar decisions

GBI Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 51882(U))The insurer's cross motion for summary judgment based on a New Jersey policy's arbitration requirement was denied on appeal.
Natural Therapy Acupuncture, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51350(U))The insurer established deductible and fee schedule defenses to three claims and nonreceipt of the claim underlying the second cause of action.
Natural Therapy Acupuncture, P.C. v Unitrin Auto & Home Ins. Co. (2016 NY Slip Op 50133(U))The provider's argument that the defending insurer lacked privity with the declaratory judgment plaintiff was unpreserved.
Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 50134(U))The insurer proved timely mailing of its EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned no-fault claims.
Natural Therapy Acupuncture, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50389(U))The insurer's affidavit and exhibits established full payment for the disputed services under the workers' compensation fee schedule.