August 31, 2012

Right Aid Med. Supply Corp. v Geico Ins. Co. (2012 NY Slip Op 51717(U))

https://www.beynensonlaw.com/case-law/right-aid-med-supply-corp-v-geico-ins-co-2012-ny-slip-op51717u/

Court: Appellate Term, Second Department
Decided: August 31, 2012
Citation: 2012 NY Slip Op 51717(U) · 36 Misc 3d 153(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

Right Aid Med. Supply Corp. v Geico Ins. Co., 36 Misc 3d 153(A), 2012 NY Slip Op 51717(U) (App Term, 2d Dept, 2d, 11th & 13th 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 failed to establish entitlement to summary judgment because its submission included a facially timely denial it did not discredit. The provider annexed the insurer's denial to its motion for summary judgment on assigned no-fault benefits. It did not show that the denial was untimely or that its basis was conclusory, vague or without merit as a matter of law. Applying Westchester Med. Ctr. v Nationwide Mut. Ins. Co. and Ave T MPC Corp. v Auto One Ins. Co., the Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order and denied the provider's motion.

Reported in New York Official Reports at Right Aid Med. Supply Corp. v Geico Ins. Co. (2012 NY Slip Op 51717(U))

[*1]

Right Aid Med. Supply Corp. v Geico Ins. Co.

2012 NY Slip Op 51717(U) [36 Misc 3d 153(A)]

Decided on August 31, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-397 K C.

Right Aid Medical Supply Corp. as Assignee of ANDRE KYLES, Respondent, —
against
Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered November 24, 2010, deemed from a judgment of the same court entered December 13, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 24, 2010 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,768.76.

ORDERED that the judgment is reversed, without costs, the order entered November 24, 2010 is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered November 24, 2010 which granted plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff annexed to its motion for summary judgment a copy of defendant’s denial of claim form, which was timely on its face. Plaintiff failed to show that the denial was untimely or that the basis for that denial was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of [*2]law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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]).

Accordingly, the judgment is reversed, the order entered November 24, 2010 is vacated, and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 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 provider failed its prima facie burden because the denial it annexed was timely on its face and it did not show the denial was untimely or conclusory, vague or meritless 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.
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.

Similar decisions

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co. (2011 NY Slip Op 52367(U))The insurer established lack of medical necessity through an affirmed peer review report, and the provider submitted no medical rebuttal.
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.
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.
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.
Right Aid Med. Supply Corp. v Allstate Ins. Co. (2014 NY Slip Op 50627(U))CPLR 3212 (g) permits a court to limit factual issues for trial when denying or partially denying summary judgment.