April 27, 2012

Top Choice Med., P.C. v Geico Gen. Ins. Co. (2012 NY Slip Op 50778(U))

https://www.beynensonlaw.com/case-law/top-choice-med-p-c-v-geico-gen-ins-co-2012-ny-slip-op-50778u/

Court: Appellate Term, Second Department
Decided: April 27, 2012
Citation: 2012 NY Slip Op 50778(U) · 35 Misc 3d 136(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

Top Choice Med., P.C. v Geico Gen. Ins. Co., 35 Misc 3d 136(A), 2012 NY Slip Op 50778(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.

A provider seeking summary judgment must show an overdue claim or a timely denial that is conclusory, vague or legally meritless. The Appellate Term, Second Department, affirmed denial of the provider's unopposed summary judgment motion. Under Insurance Law § 5106 (a), a provider's prima facie showing requires proof of claim submission, the fact and amount of the loss, and either failure to pay or deny within 30 days or a timely denial that is conclusory, vague or without merit as a matter of law. The provider failed to demonstrate that the insurer's denial forms were untimely or legally meritless, so its unopposed motion did not establish entitlement to judgment.

Reported in New York Official Reports at Top Choice Med., P.C. v Geico Gen. Ins. Co. (2012 NY Slip Op 50778(U))

[*1]

Top Choice Med., P.C. v Geico Gen. Ins. Co.

2012 NY Slip Op 50778(U) [35 Misc 3d 136(A)]

Decided on April 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
.

Top Choice Medical, P.C. as Assignee of EMILIANO VELEZ, Appellant, —
against
Geico General Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 2, 2010. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which denied its unopposed motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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]). Here, plaintiff failed to demonstrate that defendant’s denial of claim forms were either untimely or without merit as a matter of law.

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 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 to establish its prima facie case because it did not show that the insurer's denials were untimely or without merit 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 1,063 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.

Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe 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)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

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.
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.
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.
Right Aid Med. Supply Corp. v Geico Ins. Co. (2012 NY Slip Op 51717(U))The provider failed to establish entitlement to summary judgment because its submission included a facially timely denial it did not discredit.