December 1, 2015

V.S. Med. Servs., P.C. v Travelers Ins. Co. (2015 NY Slip Op 51760(U))

https://www.beynensonlaw.com/case-law/v-s-med-servs-p-c-v-travelers-ins-co-2015-ny-slip-op51760u/

Court: Appellate Term, Second Department
Decided: December 1, 2015
Citation: 2015 NY Slip Op 51760(U)
Posture: Trial
Outcome: Split result
Later treatment: Contrasted (cf., but see) in 1 and followed in 3 later decisions (see Cited by)
Issues: Provider's prima facie case Interest and attorney fees Trial and evidence
Legal questions: Claimant's prima facie case at trial · Proof of mailing (see the maps)

Cite as

V.S. Med. Servs., P.C. v Travelers Ins. Co., 2015 NY Slip Op 51760(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 provider proved its unpaid claims at trial, but statutory interest was stayed for approximately three years of failure to prosecute. The provider's bills and mailing proof were admitted through its owner's testimony, which also established nonpayment. The insurer rested without offering a defense, supporting judgment for the provider after the nonjury trial. However, after a stipulation vacated dismissal, the provider took no action for approximately three years before filing a notice of trial. Under 11 NYCRR 65-3.9 (d), that inactivity warranted extending the interest stay to February 27, 2009. The Appellate Term, Second Department, modified the judgment accordingly, otherwise affirmed, and remitted for recalculation of interest and entry of an amended judgment.

Reported in New York Official Reports at V.S. Med. Servs., P.C. v Travelers Ins. Co. (2015 NY Slip Op 51760(U))

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

V.S. Medical Services, P.C. as Assignee of Ana Castro, Respondent,
against
Travelers Insurance Co., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered August 11, 2011. The judgment, entered pursuant to a decision of the same court dated May 3, 2011, after a nonjury trial, awarded plaintiff the principal sum of $10,859.64 plus statutory interest, with the exception of the period from February 13, 2004 through March 22, 2006, during which time the accrual of statutory interest was stayed pursuant to the parties’ stipulation.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated May 3, 2011 is deemed a premature notice of appeal from the judgment entered August 11, 2011 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is modified by providing that the accrual of statutory interest is further stayed to February 27, 2009; as so modified, the judgment is affirmed, without costs, and the matter is remitted to the Civil Court for a recalculation of the interest in accordance herewith and the entry of an appropriate amended judgment thereafter.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical services rendered. In a decision after a nonjury trial, the Civil Court awarded plaintiff the principal sum of $10,859.64 plus statutory interest, except for the period from February 13, 2004 to March 22, 2006, during which time the accrual of interest had been stayed pursuant to the parties’ prior stipulation which had vacated the dismissal of the action. After defendant filed its notice of appeal from the decision, a judgment was subsequently entered. We deem the notice of appeal from the decision a premature notice of appeal from the judgment entered August 11, 2011 (see CPLR 5520 [c]). On appeal, defendant challenges plaintiff’s proof of mailing of the claims and whether plaintiff established that the claims remained unpaid at the time of trial. Defendant further argues that, due to plaintiff’s inaction after the dismissal of the action had been vacated, the accrual of statutory interest should be further stayed until February 27, 2009, the date plaintiff resumed prosecution of the action by filing a notice of trial.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and [*2]demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

As plaintiff’s bills and proof of mailing were admitted into evidence through the testimony of its owner, who testified that the bills had not been paid, plaintiff sustained its burden of proving its prima facie case at trial. Defendant rested its case without offering a defense. Consequently, the Civil Court properly granted judgment to plaintiff (see Peace of Mind, Social Work, P.C. v Travelers Aetna Prop. Cas. Corp., 43 Misc 3d 127[A], 2014 NY Slip Op 50475[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

With respect to the award of statutory interest, the record shows that plaintiff did nothing to prosecute this action for approximately three years after the parties had stipulated to vacate the dismissal of the action. Plaintiff should not be rewarded for its years of inaction by receiving a windfall of interest (see 11 NYCRR 65-3.9 [d]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the judgment is modified by providing that the accrual of statutory interest is further stayed to February 27, 2009, and the matter is remitted to the Civil Court for a recalculation of the interest in accordance herewith and the entry of an appropriate amended judgment thereafter.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: December 01, 2015

Legal questions (2)

Questions 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 at trial

Open the full map

What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?

This decision: Claimant's trial proof held to make out its prima facie case

Held at trial that the provider proved its prima facie case because its bills and proof of mailing were admitted through its owner, who testified the bills were unpaid.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 40 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

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 provider's or claimant's proof established mailing of its claim form, NF-2 or verification response

Rejected the insurer's challenge to the provider's proof of mailing, holding the bills and proof of mailing admitted through the owner's testimony sufficed.

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, 103 (this one included) are in the same category.

Cited in this decision

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

Peace of Mind, Social Work, P.C. v Travelers Aetna Prop. Cas. Corp. (2014 NY Slip Op 50475(U)) FollowedThe provider's third-party biller's testimony was sufficient to establish its prima facie case at a nonjury trial.
Urban Radiology, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50850(U)) FollowedThe insurer waived its assignment defense by failing to timely object to incomplete claim forms or seek verification of a valid assignment.
Aminov v Country Wide Ins. Co. (2014 NY Slip Op 24066) FollowedThe provider's seven years of inaction justified awarding prejudgment interest only from the filing of its notice of trial.

Cited by

A label shows how the later decision treated this one.

Eagle Surgical Supply, Inc. v Country-Wide Ins. Co. (2018 NY Slip Op 50157(U)) Contrasted (cf., but see)The insurer failed to establish that the provider unreasonably delayed the action, so statutory prejudgment interest was not tolled.
Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co. (2016 NY Slip Op 51240(U)) FollowedThe provider's years of inaction delayed the accrual of statutory interest until it moved to compel discovery.
Brand Med. Supply, Inc. v Infinity Ins. Co. (2016 NY Slip Op 50738(U)) FollowedAn insurance policy declaration page has independent legal significance and requires authentication, not a business-record foundation.
TAM Med. Supply Corp. v Travelers Ins. Co. (2018 NY Slip Op 50315(U)) FollowedAn insurer bears the trial burden of establishing a meritorious verification defense and showing that the defense is not precluded.
Country-Wide Ins. Co. v Yao Jian Ping (2024 NY Slip Op 24033)An insurer's global denial does not excuse regulatory requirements to submit a claim form or its substantial equivalent.
Healthy Way Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 50094(U))The insurer proved an IME nonappearance defense to three of seven claims, reducing the provider's recovery after trial.
V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2021 NY Slip Op 50968(U))CPLR 3404 does not authorize dismissal of a no-fault action in New York City Civil Court as abandoned.
A.M. Med. Servs., P.C. v State Farm Mut. Ins. Co. (2022 NY Slip Op 50982(U))CPLR 3404 does not authorize dismissal of a Civil Court action for abandonment, but unreasonable delay can suspend no-fault interest.

Similar decisions

A.M. Med. Servs., P.C. v Travelers Ins. Co. (2020 NY Slip Op 50459(U))The provider's statutory interest was tolled during its unreasonable delay between discovery responses and filing a notice of trial.
Parkview Med. Advanced, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51873(U))The insurer established that eight claims were premature because timely requested verification remained outstanding.
Hilda-Bloor Med., P.C. v MVAIC (2013 NY Slip Op 50382(U))MVAIC failed to defeat the provider's entitlement to benefits, but statutory interest required recalculation for possible tolling.
Metro Med. Diagnostics, P.C. v Country-Wide Ins. Co. (2022 NY Slip Op 51248(U))The provider's statutory no-fault interest was improperly tolled after settlement because the insurer did not show any impediment to payment.
Pro-Med Med., P.C. v MVAIC (2022 NY Slip Op 50135(U))Postjudgment interest on no-fault benefits accrues at 2% per month, compounded when former 11 NYCRR 65.15 (h) applies.