May 13, 2015

SMB Med. P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50719(U))

https://www.beynensonlaw.com/case-law/smb-med-p-c-v-chubb-indem-ins-co-2015-ny-slip-op50719u/

Court: Appellate Term, First Department
Decided: May 13, 2015
Citation: 2015 NY Slip Op 50719(U) · 47 Misc 3d 146(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Timeliness and preclusion

Cite as

SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146(A), 2015 NY Slip Op 50719(U) (App Term, 1st Dept 2015)

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 failed to prove that the provider's bills were received beyond the 45-day claim-submission limit. Seeking summary judgment under 11 NYCRR 65-1.1 (d), the insurer relied on its claims adjuster's affidavit. The affidavit did not describe regular practices for retrieving, opening and indexing mail or maintaining existing claim files, and therefore did not establish untimely receipt. Because the insurer failed to meet its initial burden, the motion had to be denied regardless of the sufficiency of the provider's opposition. The Appellate Term, First Department, affirmed the order denying summary judgment dismissing the complaint and reached no other issues.

Reported in New York Official Reports at SMB Med. P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50719(U))

[*1]

SMB Med. P.C. v Chubb Indem. Ins. Co.

2015 NY Slip Op 50719(U) [47 Misc 3d 146(A)]

Decided on May 13, 2015

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570039/15

SMB Medical P.C. a/a/o Faim Forto, Plaintiff-Respondent, –
against
Chubb Indemnity Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor), entered July 2, 2014, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor), entered July 2, 2014, affirmed, with $10 costs.

Defendant failed to establish its entitlement to summary judgment dismissing the complaint based upon plaintiff’s alleged untimely submission of the claims beyond the applicable 45-day time limit (see 11 NYCRR 65-1.1[d]). The affidavit of defendant’s claims adjuster failed to describe defendant’s “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]), and was inadequate to demonstrate that plaintiff’s bills were not timely received within the 45-day period. Given defendant’s failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In view of our determination, we reach no other issues.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 13, 2015

Cited by

A label shows how the later decision treated this one.

Bright Med. Supply Co. v Nationwide Ins. Co. of Am. (2017 NY Slip Op 51700(U)) FollowedThe insurer's conclusory nonreceipt affidavit failed to establish that the provider's claim was improperly or untimely submitted.
Utopia Equip. Inc. v Chubb Indem. Ins. Co. (2017 NY Slip Op 50540(U)) FollowedThe insurer failed to prove that the provider submitted its no-fault claims beyond the applicable 45-day limit.
New York Ctr. for Specialty Surgery v Infinity Ins. Co. (2025 NY Slip Op 51832(U))The insurer failed to prove nonreceipt of the claims because its affidavit did not establish incoming-mail practices and procedures.

Similar decisions

Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co. (2015 NY Slip Op 50565(U))The insurer established late submission of one claim, while conflicting expert opinions left the orthopedic surgery claim's necessity for trial.
Advanced Chiropractic of NY, P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 51409(U))The provider's proof of mailing raised a factual issue despite the insurer's proof that it had not received the claims.
Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co. (2010 NY Slip Op 50449(U))The provider failed to justify its late claim submission because it did not explain why it first billed another insurer.
Optimal Well-Being Chiropractic, P.C. v Chubb Indem. Ins. Co. (2014 NY Slip Op 51807(U))The provider's evidentiary preclusion did not warrant dismissal because the insurer's denials admitted receipt of the bills.
Diagnostic Chiropractic Specialities, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52114(U))The provider's action was premature because it commenced less than 30 days after service of the claim at issue.