March 27, 2006
Radiology Today P.C. v Allstate Ins. Co. (2006 NY Slip Op 50472(U))
https://www.beynensonlaw.com/case-law/radiology-today-p-c-v-allstate-ins-co-2006-ny-slip-op-50472u/
- Decided
- March 27, 2006
- Citation
- 2006 NY Slip Op 50472(U) · 11 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- Claimant's prima facie case on motions (see the maps)
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.
Reported in New York Official Reports at Radiology Today P.C. v Allstate Ins. Co. (2006 NY Slip Op 50472(U))
| Radiology Today P.C. v Allstate Ins. Co. |
| 2006 NY Slip Op 50472(U) [11 Misc 3d 135(A)] |
| Decided on March 27, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-377 K C. NO. 2005-377 K C
against
Allstate Insurance Company, Respondent.
Appeal by plaintiff from so much of an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered January 12, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.
Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.
In this action to recover assigned first-party no-fault benefits, plaintiff established its prima facie entitlement to summary judgment by showing that it submitted a completed proof of claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Defendant cross-moved for summary judgment. Its claims representative stated in an affidavit that the bill was received on May 1, 2002 and denied on June 4, 2002. Since the [*2]defendant did not deny the claim within the 30-day prescribed period, it is precluded from raising most defenses (see Central Gen. Hosp. v Chubb Group Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defense that the bill was not received within 180 days of service as required under the regulations in effect at the time (11 NYCRR 65.11 [m] [3]; cf. Ocean Diagnositc Imaging P.C. v GMAC Ins., 7 Misc 3d 138[A], 2005 NY Slip Op 50865 [App Term, 2d & 11th Jud Dists]). [*3]
Accordingly, plaintiff’s motion for summary judgment is granted and the matter remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.
Pesce, P.J., and Weston Patterson, J., concur.
Golia, J., concurs in a separate memorandum.
[*4]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
RADIOLOGY TODAY P.C.
A/A/O JOSE PEREZ,
Appellant,
-against-
ALLSTATE INSURANCE COMPANY,
Respondent.
Golia, J., concurs with the result only, in the following memorandum:
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
It should be noted that between the submission by the plaintiff and the defendant there are no less than three (3) NF-10 denial forms attributable to the defendant, and not one of them is clearly referable to the NF-3 claim form submitted. [*5]
Although all three appear to address the same two MRI “treatment” of September 24, 2001 and October 11, 2001, they each indicate different dates of billing; different dates of receipt; and different names for the provider. What is even more disconcerting is that the affirmation of defendant’s counsel sets forth that these denials were issued more than 30 days from receipt of the claim. I note that in one instance, it was sent merely one day “late” and that the 30th day was a Sunday. Therefore, under the normal rules of statutory interpretation, it was, in fact, a timely response. Why the defendant failed to point that out is a mystery. I am also mystified as to why the defendant would be unable to easily meet the 30 day deadline given that the ground for denial is that the claim was not filed within the 180 day time period allotted to the claimant.
I am also at a loss to understand why defendants persist in their failure to clearly and unequivocally meet even the simplest of burdens placed upon them by regulations and the courts. These would include proof of mailing, timely and specific denials, timely requests for verifications, and objections to assignments, timely follow-up requests for independent medical examinations, etc.
Decision Date: March 27, 2006
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.
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)
Held the provider established its prima facie case by showing it submitted a completed proof of claim and payment was overdue, shifting the burden to the insurer.
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.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
- Ocean Diagnostic Imaging P.C. v GMAC Ins. F/k/a Integon Ins. (2005 NYSlipOp 50865(U)) Contrasted (cf., but see)The insurer raised a preserved triable issue whether notice of the accident was provided within the required 90 days.
Similar decisions
- Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2006 NY Slip Op 50140(U))The insurer's EUO request did not toll one claim, and its opposition failed to rebut medical necessity on the other.
- Accessible & Advance Med. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51599(U))The insurer's timely denials lacked a factual basis, and it failed to prove timely sending of the referenced peer review.
- A.M. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 51426(U))The insurer's conclusory medical-necessity denials were ineffective, but policy-limit exhaustion remained a factual issue.
- Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 51578(U))The insurer's premature verification follow-up left its denial untimely and precluded its medical-necessity defense.
- Bronx Expert Radiology, P.C. v Great N. Ins. Co. (2009 NY Slip Op 51474(U))The provider failed to justify its delayed claim submission after mistakenly billing the wrong insurer.