December 21, 2012

New York Diagnostic Med. Care, P.C. v GEICO Cas. Ins. Co. (2012 NY Slip Op 52409(U))

https://www.beynensonlaw.com/case-law/new-york-diagnostic-med-care-p-c-v-geico-cas-ins-co-2012-ny-slipop-52409u/

Court: Appellate Term, Second Department
Decided: December 21, 2012
Citation: 2012 NY Slip Op 52409(U) · 38 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

New York Diagnostic Med. Care, P.C. v GEICO Cas. Ins. Co., 38 Misc 3d 131(A), 2012 NY Slip Op 52409(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.

The provider's billing affidavit failed to establish overdue claims or timely denials that were legally deficient. In an action for assigned no-fault benefits, the provider appealed the denial of its summary judgment motion. Under Insurance Law § 5106 (a), the billing manager's affidavit did not establish either that the insurer failed to pay or deny the claims within 30 days or that timely denials were conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the insurer's favor and expressly reached no other issue.

Reported in New York Official Reports at New York Diagnostic Med. Care, P.C. v GEICO Cas. Ins. Co. (2012 NY Slip Op 52409(U))

[*1]

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

2012 NY Slip Op 52409(U) [38 Misc 3d 131(A)]

Decided on December 21, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2012

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

PRESENT: : MOLIA, J.P., NICOLAI and IANNACCI, JJ
2011-976 N C.

New York Diagnostic Medical Care, P.C. as Assignee of CURTIS JONES and JEFFREY WIAFE, Appellant, —
against
GEICO Casualty Insurance Co., Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated February 28, 2011. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, 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 District Court as denied plaintiff’s motion for summary judgment. Plaintiff’s moving papers failed to establish a prima facie entitlement to judgment as a matter of law because the affidavit submitted by plaintiff’s billing manager was insufficient to establish either that defendant had failed to pay or deny the claims at issue within the requisite 30-day period, or that defendant had issued timely denial of claims that were 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]; 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, 9th & 10th Jud Dists 2012]). In view of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is affirmed. [*2]

Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: December 21, 2012

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 billing manager's affidavit failed to establish that the insurer did not pay or deny within 30 days, or that its timely denials were conclusory, vague or without merit as a matter of law.

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

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.
New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co. (2012 NY Slip Op 50681(U))Timeliness under the 45-day claim-submission requirement turns on the provider's submission date, rather than the insurer's receipt date.

Similar decisions

New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment.
Lynbrook Med., P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 51841(U))The providers failed to establish entitlement to summary judgment because they did not show that the insurer's timely denials lacked merit.
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.
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51447(U))The insurer established timely denials and an unrebutted lack of medical necessity through affirmed peer review reports.
Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52004(U))The insurer's unrebutted sworn peer review established that the services lacked medical necessity.