April 10, 2012

New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co. (2012 NY Slip Op 50681(U))

https://www.beynensonlaw.com/case-law/new-york-diagnostic-med-care-p-c-v-geico-cas-ins-co-2012-ny-slip-op50681u/

Court: Appellate Term, Second Department
Decided: April 10, 2012
Citation: 2012 NY Slip Op 50681(U) · 35 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Provider prevailed
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

New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co., 35 Misc 3d 131(A), 2012 NY Slip Op 50681(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2012)

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.

Timeliness under the 45-day claim-submission requirement turns on the provider's submission date, rather than the insurer's receipt date. The billing manager's affidavit established that the claim forms were admissible under CPLR 4518 and mailed within 45 days after services were rendered. The insurer's late-submission denials therefore lacked merit as a matter of law under 11 NYCRR 65-1.1. The provider established prima facie entitlement to summary judgment, and the insurer failed to raise a triable issue. The Appellate Term, Second Department, reversed the order denying the provider's motion, granted summary judgment, and remitted the matter to the Civil Court for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 (a).

Reported in New York Official Reports at New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co. (2012 NY Slip Op 50681(U))

[*1]

New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co.

2012 NY Slip Op 50681(U) [35 Misc 3d 131(A)]

Decided on April 10, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 10, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : MOLIA, J.P., NICOLAI and LaCAVA, JJ
2011-676 N C.

New York Diagnostic Medical Care, P.C. as Assignee of AUSTIN TROUT and ATIBA COBBLER, Appellant, —
against
Geico Casualty Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Andrea Phoenix, J.), dated November 24, 2010. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant either failed to pay or deny the claim within the requisite 30-day period or issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). The affidavit by plaintiff’s billing manager was sufficient to establish that the claim forms annexed to the motion papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C., 55 AD3d 644 [2008]; Fortune Med., P.C. v Travelers Home & Mar. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]), that the claim forms had been mailed to defendant within 45 days of the date services were rendered (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that the basis for defendant’s denials, i.e., that “written proof of claim was provided more than 45 days after the date these services were rendered” was “without merit as a matter of law.” Contrary to defendant’s contention, it is not the date of defendant’s receipt of a claim form which determines whether the submission of a claim form is untimely, but rather the date of plaintiff’s submission of the claim form (see Insurance Department Regulations [11 NYCRR] § 65 – 1.1 [“the eligible injured person or that person’s assignee . . . shall submit written [*2]proof of claim to the Company . . . in no event later than 45 days after the date services are rendered”]; see also SZ Med. P.C. v Country-Wide Ins. Co.,12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]; Ops Gen Counsel NY Ins Dept No. 04-02-12 [Feb. 2004]).

As plaintiff established its prima facie entitlement to summary judgment (see Westchester Med. Ctr., 78 AD3d 1168), the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Since defendant failed to do so, plaintiff should have been awarded summary judgment. Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Molia, J.P., Nicolai and LaCava, JJ., concur.
Decision Date: April 10, 2012

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: Claimant's proof held to make out its prima facie case

Held the billing manager's affidavit established the claim forms' admissibility, their mailing within 45 days, and that the late-submission denials lacked merit, so the provider made its prima facie case.

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

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (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 established mailing of its claim form, NF-2 or verification response

Held the billing manager's affidavit established that the claim forms were mailed within 45 days of service, defeating the insurer's late-submission denial measured from its date of receipt.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.

Cited in this decision

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

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.
New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 05602)The insurer proved a timely denial but failed to establish that the provider's treatment was unrelated to the accident.
Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Fortune Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50243(U)) FollowedAn insurer's acknowledgment of claim receipt does not concede the admissibility of the claim forms or the facts they contain.
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.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
SZ Med. P.C. v Country-Wide Ins. Co. (2006 NY Slip Op 26194)An insurer waives the 45-day submission defense by omitting notice that reasonable justification can excuse a late claim.

Cited by

New York Diagnostic Med. Care, P.C. v GEICO Cas. Ins. Co. (2012 NY Slip Op 52409(U))The provider's billing affidavit failed to establish overdue claims or timely denials that were legally deficient.

Similar decisions

New York Diagnostic Med. Care, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51808(U))The provider failed to establish that the insurer's denials were untimely or legally insufficient, defeating its prima facie showing.
Neomy Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 51252(U))The insurer established timely denials and unrebutted defenses of lack of medical necessity and charges exceeding the fee schedule.
Manhattan Med. Imaging, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51737(U))The insurer's timely denial and supported peer review raised a triable issue of medical necessity, defeating provider summary judgment.
A.B. Med. Servs., PLLC v Geico Cas. Ins. Co. (2010 NY Slip Op 50224(U))The provider could not obtain a CPLR 3212 (g) finding establishing its prima facie case because its billing affidavit did not establish admissibility.
A.B. Med., PLLC v GEICO (2013 NY Slip Op 50203(U))The provider failed to establish that the insurer's denials were untimely or without merit as a matter of law.