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October 8, 2013

New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 23360)

https://www.beynensonlaw.com/case-law/new-york-diagnostic-med-care-p-c-v-geico-gen-ins-co-2013-ny-slip-op-23360/

Court
Appellate Term, Second Department
Decided
October 8, 2013
Citation
2013 NY Slip Op 23360 · 42 Misc 3d 1
Posture
Summary judgment
Outcome
Provider prevailed
Later treatment
Followed in 1 later decision (see Cited by)
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 Gen. Ins. Co., 42 Misc 3d 1 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 established claim submission through the insurer's denials and proved the loss through admissible claim forms. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the provider's requested finding under CPLR 3212 (g). The denials admitted receipt of the claims, and the provider demonstrated that its claim forms were admissible business records under CPLR 4518 (a), without rebuttal by the insurer. Because the Civil Court had already found timely and proper denials established and limited the trial issues, the appellate court found it appropriate to establish claim submission and the fact and amount of loss for all purposes in the action. Trial was further limited to medical necessity.

Reported in New York Official Reports at New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 23360)

New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co.
2013 NY Slip Op 23360 [42 Misc 3d 1]
Accepted for Miscellaneous Reports Publication
AT2
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 15, 2014

[*1]

New York Diagnostic Medical Care, P.C., as Assignee of Shanna Barrow, Appellant,
v
GEICO General Insurance Company, Respondent.

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 8, 2013

APPEARANCES OF COUNSEL

Moshe D. Fuld, P.C., Brooklyn (David Karp and Cheryl Scher of counsel), for appellant. Law Offices of Teresa M. Spina, Woodbury (Lawrence J. Chanice of counsel), for respondent.

{**42 Misc 3d at 2} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms in question and the fact and the amount of the loss sustained is granted.{**42 Misc 3d at 3}

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained. Defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. In an order entered August 17, 2011, the Civil Court found that defendant had established, for all purposes in the action, that defendant had issued timely and proper denials, and limited the trial to plaintiff’s “prima facie case” and the issue of medical necessity. Plaintiff appeals, as limited by the brief, from so much of the order as denied the branch of its motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained.

As plaintiff argues, it proved the submission of the relevant claim forms to defendant by annexing the denials, which admitted the receipt of those claim forms (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Moreover, contrary to defendant’s argument on appeal, plaintiff established the fact and the amount of the loss sustained by demonstrating that its claim forms were admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences [*2]and/or events recorded therein, and defendant did not rebut that showing. Thus, in the particular circumstances of this case, including the fact that the Civil Court did make a CPLR 3212 (g) finding as to the timely mailing of the denials and did limit the issues for trial, we find that it is appropriate to make a finding, pursuant to CPLR 3212 (g), that plaintiff established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained, and to therefore further limit the trial to the issue of medical necessity only.

Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained is granted.{**42 Misc 3d at 4}

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

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: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Granted a CPLR 3212 (g) finding that the provider established submission of the claim forms, through denials admitting receipt, and the fact and amount of the loss, through claim forms admissible under CPLR 4518 (a).

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 81
  • Appellate TermApp Term 843
  • Trial courtsTrial 139
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 16 decisions (13 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 15 decisions (9 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
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, 513 (this one included) are in the same category.

Cited in this decision

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

  • East Acupuncture, P.C. v Electric Ins. Co. (2007 NY Slip Op 51281(U)) FollowedThe insurer's late denials did not bar its coverage defense, and its evidence raised a triable issue of a staged incident.
  • Oleg Barshay, D.C., P.C. v State Farm Ins. Co. (2006 NY Slip Op 26496) FollowedA provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.

Cited by

A label shows how the later decision treated this one.

  • Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51434(U)) FollowedThe provider established submission of its claim forms through the insurer's denials admitting receipt.

Similar decisions

  • LOF Med. Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50595(U))The provider established its claims through admissible billing records and an order precluding evidence of the medical-necessity defense.
  • 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.
  • Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2013 NY Slip Op 51458(U))The provider established the fact and amount of its loss through an admissible claim form, while medical necessity remained disputed.
  • EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 50786(U))The insurer's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them.
  • Complete Radiology, P.C. v GEICO Ins. Co. (2013 NY Slip Op 50220(U))The provider obtained summary judgment on the appealed claim because it proved its loss and the insurer failed to allege mailing of a denial.
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