March 5, 2007
Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50394(U))
https://www.beynensonlaw.com/case-law/wei-wei-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2007-ny-slip-op-50394u/
- Decided
- March 5, 2007
- Citation
- 2007 NY Slip Op 50394(U) · 14 Misc 3d 144(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
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.
Reported in New York Official Reports at Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 50394(U))
| Wei Wei Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2007 NY Slip Op 50394(U) [14 Misc 3d 144(A)] |
| Decided on March 5, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1184 K C.
against
State Farm Mutual Automobile Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Donald S. Kurtz, J.), entered May 25, 2005. The order granted plaintiff’s motion for summary judgment in the principal sum of $2,805 and denied defendant’s cross motion for summary judgment.
Order affirmed without costs.
In this action to recover assigned first-party no-fault benefits, we do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raised no issue in the court below or on appeal with respect thereto.
In opposition to the motion, defendant’s attorney made the conclusory allegation, without personal knowledge of the facts, that defendant had sent several requests for examinations under oath to the insured and that the insured failed to appear. Since defendant failed to properly establish said mailings (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to establish that the 30-day prescribed period in which to deny the claims was tolled (Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded from raising most defenses (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
Defendant further opposed plaintiff’s motion asserting that the alleged injuries do not arise out of a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). However, the affidavit by an investigator for the special investigation unit of defendant failed to allege facts either upon personal knowledge or based upon evidence in admissible form with sufficient particularity to establish a “founded belief that the alleged [*2]injur[ies] do[ ] not arise out of an insured incident” (see Central Gen. Hosp., 90 NY2d at 199; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v Eagle Ins. Co, 3 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2003]). Consequently, the court properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.
Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: March 5, 2007
Legal questions (4)
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held that counsel's conclusory allegation, without personal knowledge, that EUO requests were sent did not establish their mailing, so no toll of the 30-day period was shown.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (this one included) are in the same category.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed
Rejected the EUO no-show defense because only an attorney without personal knowledge asserted that EUO requests were sent and the insured failed to appear, so the mailings were not established.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (this one included) are in the same category.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Insurer's proof did not raise an issue or failed at trial; provider prevails on it
Held the SIU investigator's affidavit, lacking facts on personal knowledge or admissible evidence with sufficient particularity, failed to show a founded belief that the injuries did not arise from an insured incident; summary judgment for the provider affirmed.
Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 80 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial (rules on the question, but another ground decided the case)
Held the insurer precluded from most defenses, including the EUO no-show, because without proof the EUO requests were mailed the 30-day period to deny was not shown to be tolled.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- Fair Price Med. Supply Corp. v General Assur. Co. (2005 NY Slip Op 50256(U)) FollowedThe insurer's conclusory proof of IME requests and nonappearance failed to raise a triable issue against the provider's claim.
- A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U)) FollowedThe insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
- A.B. Med. Servs. v Eagle Ins. Co. (2003 NY Slip Op 23978) FollowedThe insurer's investigator's affidavit failed to raise a triable issue that the collision was staged.
Cited by
- All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co. (2007 NY Slip Op 27458)The insurer failed to prove timely mailing of verification requests or lack of medical necessity for the prescribed equipment.
Similar decisions
- New Century Chiropractic, P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 52236(U))The insurer's investigator established a founded belief that the injuries did not arise from an insured incident, raising a coverage issue.
- Boai Zhong Yi Acupuncture Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 52516(U))The provider failed to establish submission of its claim, and the insurer's delay letter did not identify the claim at issue.
- Great Wall Acupuncture v Peerless Ins. Co. (2007 NY Slip Op 51606(U))The insurer failed to raise a triable coverage issue on its defense that the insured vehicle was not involved in the accident.
- Lexington Acupuncture, P.C. v GEICO Ins. Co. (2008 NY Slip Op 50519(U))The insurer's founded belief that the injuries did not arise from an insured incident defeated the provider's summary judgment motion.
- Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 50134(U))The insurer proved timely mailing of its EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned no-fault claims.