May 13, 2016

VS Care Acupuncture, PC v MVAIC (2016 NY Slip Op 50764(U))

https://www.beynensonlaw.com/case-law/vs-care-acupuncture-pc-v-mvaic-2016-ny-slip-op-50764u/

Court: Appellate Term, First Department
Decided: May 13, 2016
Citation: 2016 NY Slip Op 50764(U) · 51 Misc 3d 147(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: MVAIC
Legal questions: MVAIC eligibility: qualified covered person (see the maps)

Cite as

VS Care Acupuncture, PC v MVAIC, 51 Misc 3d 147(A), 2016 NY Slip Op 50764(U) (App Term, 1st Dept 2016)

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.

MVAIC's own conflicting proof left a triable issue as to whether the assignor filed a notice of intention to make a claim. In moving for summary judgment dismissing the provider's assigned no-fault action, MVAIC submitted a letter acknowledging receipt of that notice. This conflicted with its asserted basis for dismissal and prevented a prima facie showing of entitlement to judgment. Denial was therefore required regardless of the sufficiency of the provider's opposition. The Appellate Term, First Department, affirmed the denial of MVAIC's motion on grounds different from those given by the Civil Court. MVAIC's remaining contentions were unpreserved or without merit.

Reported in New York Official Reports at VS Care Acupuncture, PC v MVAIC (2016 NY Slip Op 50764(U))

[*1]

VS Care Acupuncture, PC v MVAIC

2016 NY Slip Op 50764(U) [51 Misc 3d 147(A)]

Decided on May 13, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
16-202

VS Care Acupuncture, PC, a/a/o Dalayshia Carr, Plaintiff-Respondent,

against

MVAIC, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered October 28, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered October 28, 2015, affirmed, with $10 costs.

We sustain the denial of defendant MVAIC’s motion for summary judgment dismissing this first-party no-fault action, albeit for reasons other than those stated by Civil Court. Our review of the record indicates that defendant failed to eliminate all triable issues with respect to whether plaintiff’s assignor filed a notice of intention to make a claim, since its own proof contains conflicting evidence (see Center Candy, Inc. v CJB Food Mart, Inc., 50 AD3d 723 [2008]), specifically, a letter it sent to the assignor stating “we are in receipt of the Notice of Intention to Make Claim” (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Dover Acupuncture, P.C. v Motor Veh. Acc. Indem. Corp., 36 Misc 3d 145[A], 2012 NY Slip Op 51619[U])[App Term, 1st Dept. 2012]). Given defendant’s failure to make a prima facie showing of entitlement to judgment as a matter of law, denial of its motion was required regardless of the sufficiency of plaintiff’s opposition papers (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s remaining contentions are unpreserved and/or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 13, 2016

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.

MVAIC eligibility: qualified covered person

Open the full map

Against MVAIC, was the claimant shown to be a qualified, covered person meeting article 52’s conditions?

This decision: Eligibility cannot be decided on this record: triable issue, or defense preserved and remitted/remanded

Held MVAIC failed to eliminate triable issues on whether the assignor filed a notice of intention, because its own letter acknowledged receiving the notice, so its summary judgment motion was denied.

Found not eligibleClaimant's proof lackingMVAIC failed to proveUnresolved / for trialDefense precluded/waivedThis decisionCites it or cited by itCited or followed

Of the 43 decisions on this question in the First Department courts and the Court of Appeals, 8 (this one included) are in the same category.

Cited in this decision

Dover Acupuncture, P.C. v Motor Veh. Acc. Indem. Corp. (2012 NY Slip Op 51619(U))MVAIC's conflicting evidence of notice receipt and its own proof of absent insurance defeated its summary judgment motion.

Cited by

A label shows how the later decision treated this one.

Gagliardi v MVAIC (2019 NY Slip Op 52083(U)) FollowedMVAIC's conflicting vehicle-ownership evidence failed to eliminate triable issues on its lack-of-coverage defense.
Karina K. Acupuncture, P.C. v MVAIC (2017 NY Slip Op 50546(U))MVAIC's contradictory descriptions of the assignor and the vehicle created triable issues rather than eliminating them.

Similar decisions

Easy Care Acupuncture PC v MVAIC (2014 NY Slip Op 51645(U))MVAIC failed to prove late claim submission because its representative's conclusory assertion of unawareness did not establish nonreceipt.
V.S. Care Acupuncture PC v MVAIC (2015 NY Slip Op 50350(U))MVAIC need not notify a provider of a scheduled IME before relying on the resulting report to deny further treatment.
SML Acupuncture P.C. v MVAIC (2017 NY Slip Op 50539(U))MVAIC's untimely denial does not preclude a lack-of-coverage defense based on failure to file a timely notice of claim.
Acupuncture Approach PC v MVAIC (2013 NY Slip Op 51676(U))MVAIC failed to establish proper IME notice mailing because its scheduling affidavit lacked personal knowledge and described only general practices.
Easy Care Acupuncture, PC v MVAIC (2017 NY Slip Op 51346(U))A failure to deny a claim within 30 days does not preclude a defense that coverage limits have been exhausted.