December 19, 2017

Shirom Acupuncture, P.C. v 21st Century Natl. Ins. Co. (2017 NY Slip Op 51819(U))

https://www.beynensonlaw.com/case-law/shirom-acupuncture-p-c-v-21st-century-natl-ins-co-2017-ny-slip-op51819u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51819(U) · 58 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Shirom Acupuncture, P.C. v 21st Century Natl. Ins. Co., 58 Misc 3d 136(A), 2017 NY Slip Op 51819(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 insurer established proper mailing of the denial forms challenged in its fee-schedule payment defense. The provider appealed summary judgment dismissing its assigned no-fault claims on the ground that the insurer had fully paid for the services under the workers' compensation fee schedule. Contrary to the provider's contention, the insurer's proof sufficiently established proper mailing under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and rejected the provider's remaining contention as lacking merit.

Reported in New York Official Reports at Shirom Acupuncture, P.C. v 21st Century Natl. Ins. Co. (2017 NY Slip Op 51819(U))

[*1]

Shirom Acupuncture, P.C. v 21st Century Natl. Ins. Co.

2017 NY Slip Op 51819(U) [58 Misc 3d 136(A)]

Decided on December 19, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1076 K C

Shirom Acupuncture, P.C., as Assignee of Amalia Madera, Appellant,
against
21st Century National Ins. Co., Respondent.

Gary Tsirelman, P.C. (Douglas Mace, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 12, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule.

Contrary to plaintiff’s contention, the proof submitted by defendant was sufficient to establish the proper mailing of the denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017

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.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the insurer's proof sufficient to establish proper mailing of the denials, rejecting the provider's challenge and upholding dismissal on the fee schedule payment defense.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.

Similar decisions

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51792(U))The insurer's summary judgment motion was granted based on full fee schedule payment and proper mailing of its denial.
V.S. Care Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51881(U))The insurer established that the disputed acupuncture charges exceeded the applicable workers' compensation fee schedule.
Acupuncture Now, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51809(U))The insurer's summary judgment cross motion on fee schedule claims was granted after its mailing and fee schedule proof were upheld.
Shara Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50255(U))The insurer preserved its fee schedule defense, but factual issues remained as to whether it had fully paid under that schedule.
GL Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51328(U))The insurer's fee schedule defense did not support summary judgment because its affidavits failed to establish timely mailing of denials.