December 17, 2014

New York Diagnostic Med. Care, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51808(U))

https://www.beynensonlaw.com/case-law/new-york-diagnostic-med-care-p-c-v-geico-gen-ins-co-2014-ny-slipop-51808u/

Court: Appellate Term, Second Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51808(U) · 46 Misc 3d 129(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 Gen. Ins. Co., 46 Misc 3d 129(A), 2014 NY Slip Op 51808(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider failed to establish that the insurer's denials were untimely or legally insufficient, defeating its prima facie showing. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion. Under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., a provider must submit admissible evidence of mailing its claims and either failure to pay or deny within 30 days or timely denials that are conclusory, vague or meritless as a matter of law. The employee's affidavit established mailing and nonpayment within 30 days, but did not demonstrate untimely denials or legally insufficient timely denials. The provider therefore failed to satisfy its initial burden.

Reported in New York Official Reports at New York Diagnostic Med. Care, P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51808(U))

[*1]

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

2014 NY Slip Op 51808(U) [46 Misc 3d 129(A)]

Decided on December 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1299 K C

New York Diagnostic Medical Care, P.C. as Assignee of KENNETH SMITH, Appellant,
against
Geico General Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered April 26, 2012. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to judgment as a matter of law by submitting evidence, in admissible form, that claim forms were mailed to the defendant insurer, and that the insurer failed to pay or deny those claims within the prescribed 30-day period or issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; 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]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

While the supporting affidavit by plaintiff’s employee established that plaintiff had mailed the claim forms in question to defendant, and that defendant had failed to pay those claims within the requisite 30-day period, the affidavit failed to demonstrate that defendant had either failed to deny the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms which were conclusory, vague or without merit as a matter of law. As plaintiff failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment was properly denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33).

Accordingly, the order is affirmed.

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

Decision Date: December 17, 2014

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 that although the employee's affidavit established mailing and nonpayment within 30 days, it failed to show the claims were not timely denied 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 1,063 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.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
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.

Similar decisions

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.
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.
Top Choice Med., P.C. v Geico Gen. Ins. Co. (2012 NY Slip Op 50778(U))A provider seeking summary judgment must show an overdue claim or a timely denial that is conclusory, vague or legally meritless.
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.
Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50197(U))The insurer's unrebutted peer review and IME reports established lack of medical necessity for the claims challenged on appeal.