October 13, 2016

New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51527(U))

https://www.beynensonlaw.com/case-law/new-way-acupuncture-p-c-v-new-york-cent-mut-fire-ins-co-2016-nyslip-op-51527u/

Court: Appellate Term, Second Department
Decided: October 13, 2016
Citation: 2016 NY Slip Op 51527(U)
Posture: Summary judgment
Outcome: Split result
Issues: IME no-show Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 51527(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 parties' proof failed to establish either IME nonappearance or the provider's prima facie entitlement to summary judgment. The insurer's affidavit concerning the second IME nonappearance appeared on its face to have been notarized before it was signed and did not establish the defense as a matter of law. The provider failed to show that the claim was not timely denied or that a timely denial was conclusory, vague, or legally meritless. Treating the appeal as taken from the ensuing judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the provider's judgment and denied its cross motion, while leaving the denial of the insurer's motion intact.

Reported in New York Official Reports at New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51527(U))

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 15, 2013, deemed from a judgment of the same court entered December 17, 2013 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 15, 2013 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,075.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered July 15, 2013 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered July 15, 2013 which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment. A judgment was subsequently entered pursuant to the order, awarding plaintiff the principal sum of $3,075, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant’s motion was properly denied, as defendant failed to establish, as a matter of law, that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Among other things, the affidavit attesting to the second failure to appear indicates, on its face, that it had been notarized before it was signed (see e.g. 97 NY Jur 2d, Summary Judgment, Etc. § 47 [proof in support of summary judgment must be in evidentiary form]).

However, as defendant argues, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its cross motion failed to establish that the claim 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 a timely denial of claim that was 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]).

Accordingly, the judgment is reversed, so much of the order entered July 15, 2013 as granted plaintiff’s cross motion is vacated, and plaintiff’s cross motion is denied.

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

Decision Date: October 13, 2016

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 proof failed to establish that the claim had not been timely denied or that a timely denial was 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.

No-show defense: insurer's proof

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Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer failed to prove the nonappearance by someone with personal knowledge

Held the insurer failed to establish the assignor's IME nonappearance as a matter of law because, among other defects, the affidavit attesting to the second nonappearance was notarized before it was signed.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decision

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.

Cited in this decision

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

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.

Similar decisions

Healthy Way Acupuncture, P.C. v Farmington Cas. Co. (2015 NY Slip Op 51595(U))Neither party established entitlement to summary judgment: the insurer's mailing proof and the provider's supporting affirmation were deficient.
Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51828(U))The insurer's follow-up verification requests were proper, supporting dismissal of the provider's no-fault action as premature.
NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.
Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51653(U))The insurer proved timely IME notices and denials and the assignor's nonappearance, while the provider failed to raise a factual issue.
Healthy Way Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50094(U))The insurer proved an IME nonappearance defense to three of seven claims, reducing the provider's recovery after trial.