November 19, 2015

New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 51706(U))

https://www.beynensonlaw.com/case-law/new-way-acupuncture-p-c-v-new-york-cent-mut-fire-ins-co-2015-nyslip-op-51706u/

Court: Appellate Term, Second Department
Decided: November 19, 2015
Citation: 2015 NY Slip Op 51706(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Verification requests Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 2015 NY Slip Op 51706(U) (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.

Letters merely delaying payment without requesting specific verification do not toll the insurer's time to pay or deny a claim. The insurer sought dismissal of the unpaid portions of two claims on fee-schedule grounds. Its letters requested no specific verification, and it failed to establish another basis for tolling or freedom from preclusion. The provider likewise failed to prove either nonpayment or denial beyond the 30-day period under Insurance Law § 5106 (a), or timely denials that were conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's summary judgment motion on those unpaid portions and otherwise affirmed, leaving the provider's corresponding cross motion denied.

Reported in New York Official Reports at New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 51706(U))

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

New Way Acupuncture, P.C. as Assignee of IGOR KRIS, Appellant,
against
New York Central Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 12, 2013. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985, and denied the branches of plaintiff’s cross motion seeking summary judgment upon that portion of the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 are 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 so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985, and denied the branches of plaintiff’s cross motion seeking summary judgment upon that portion of the complaint.

A review of defendant’s letters reveals that they merely notified plaintiff that defendant was delaying payment, but they did not request any specific verification. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny the claims at issue (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists [2010]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant failed to establish, as a matter of law, that it is not precluded from raising its proffered defense that the fees sought exceeded the amount permitted by the workers’ compensation fee schedule (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 should have been denied.

Plaintiff’s cross motion failed to establish either that defendant had failed to pay or deny the claims seeking to recover the unpaid portions of the claims for $2,015 and $985 within the [*2]requisite 30-day period (see Insurance Law § 5106 [a]; 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, 11th & 13th Jud Dists 2011]). As a result, plaintiff failed to demonstrate its prima facie entitlement to summary judgment upon this portion of the complaint.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 are denied.

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

Decision Date: November 19, 2015

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 did not show the unpaid portions of the claims were not paid or denied within 30 days, 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.

Cited in this decision

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

Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51338(U)) FollowedThe insurer proved EUO nonappearance and timely notices for three claims, but failed to establish tolling for the remaining claims.
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) FollowedThe 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)) FollowedThe 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.

Golden Needle Acupuncture P.C. v MAPFRE Ins. Co. (2016 NY Slip Op 26411) FollowedThe insurer's recorded-statement requests and nonspecific delay letters did not toll the 30-day period to pay or deny claims.

Similar decisions

Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51455(U))The insurer failed to establish timely denials preserving its fee-schedule defense to three claims.
Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50945(U))The insurer failed to prove timely fee-schedule denials or lack of coverage for two claims, but raised a triable coverage issue.
Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 50773(U))A timely verification request tolls the insurer's time to pay or deny the entire claim, even when the claim bills services under separate codes.
Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51623(U))The insurer established lack of medical necessity for three claims, but failed to conclusively prove its defenses to three others.
Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51903(U))The insurer failed to establish timely mailing of its fee-schedule denial, while the provider failed to establish entitlement to payment.