November 13, 2020

Wave Med. Servs., P.C. v Global Liberty Ins. (2020 NY Slip Op 51383(U))

https://www.beynensonlaw.com/case-law/wave-med-servs-p-c-v-global-liberty-ins-2020-ny-slip-op-51383u/

Court: Appellate Term, Second Department
Decided: November 13, 2020
Citation: 2020 NY Slip Op 51383(U) · 69 Misc 3d 145(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

Wave Med. Servs., P.C. v Global Liberty Ins., 69 Misc 3d 145(A), 2020 NY Slip Op 51383(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 failed to establish that the insurer's denial was untimely or legally insufficient on the second cause of action. In this action for assigned first-party no-fault benefits, the insurer limited its appeal to the grant of summary judgment on that cause of action. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied that branch of the provider's motion. The provider had not demonstrated either a failure to deny the claim timely or a timely denial that was conclusory, vague, or without merit as a matter of law.

Reported in New York Official Reports at Wave Med. Servs., P.C. v Global Liberty Ins. (2020 NY Slip Op 51383(U))

[*1]

Wave Med. Servs., P.C. v Global Liberty Ins.

2020 NY Slip Op 51383(U) [69 Misc 3d 145(A)]

Decided on November 13, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2020

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

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2019-163 K C

Wave Medical Services, P.C., as Assignee of Marcel Fabiola, Respondent,
against
Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 5, 2018. The order, insofar as appealed from as limited by the brief, granted the branch of plaintiff’s motion seeking summary judgment upon the second cause of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of plaintiff’s motion seeking summary judgment upon the second cause of action is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branch of plaintiff’s motion seeking summary judgment upon the second cause of action.

Plaintiff failed to establish its prima facie entitlement to summary judgment upon the second cause of action, since plaintiff did not establish either that defendant failed to timely deny the claim at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see 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 Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff’s [*2]motion seeking summary judgment upon the second cause of action is denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020

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 claimant failed its prima facie burden because it did not show the insurer failed to timely deny the claim or that a timely denial was conclusory, vague or without merit.

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.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
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

Wave Med. Servs., P.C. v Farmers New Century Ins. Co. (2020 NY Slip Op 50555(U))The insurer obtained summary judgment based on a declaratory judgment establishing the provider's ineligibility for no-fault benefits.
Healthway Med. Care, P.C. v Global Liberty Ins. (2017 NY Slip Op 51807(U))The insurer failed to establish its fee schedule defense and timely mailing of IME scheduling letters.
Lida’s Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51691(U))The provider's summary judgment motion was denied because it failed to establish untimely denial or a legally insufficient timely denial.
Westchester Radiology & Imaging, P.C. v Global Liberty Ins. Co. of N.Y. (2021 NY Slip Op 50641(U))The rule against successive summary judgment motions does not apply when the court did not consider the insurer's initial cross motion.
Lidas Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51733(U))The provider's summary judgment motion was denied on appeal for failure to establish the required proof concerning claim denial.