First Application of Etienne

The Etienne Standard’s Impact on Prima Facie Cases

The Second Department’s landmark decision in Viviane Etienne Medical Care, P.C. v. Country-Wide Insurance Co. fundamentally altered the landscape for establishing prima facie cases in no-fault litigation. Before Etienne, some courts had adopted an extremely lenient standard articulated in cases like Mary Immaculate Hospital v. Allstate Insurance Co., which suggested that providers could establish their prima facie burden by merely showing that more than 30 days had elapsed without payment. The Etienne decision rejected this minimalist approach and required providers to address verification requests in their prima facie showing.

The case of Westchester Medical Center v. Allstate Insurance Co. represents one of the first applications of the Etienne standard by the Second Department. This decision clarifies what evidence providers must submit to establish a prima facie case when insurers have sent verification requests, and demonstrates how the Etienne framework differs from the earlier Mary Immaculate approach that some practitioners hoped would continue to govern.

The significance of this evolution cannot be overstated. Under the old Mary Immaculate standard, providers could prevail on summary judgment with minimal evidentiary submissions. Etienne imposed meaningful burdens on providers to demonstrate either compliance with verification requests or the invalidity of such requests—a requirement that has reshaped litigation strategy for both providers and insurers.

Case Background

In Westchester Medical Center v. Allstate Insurance Co., the plaintiff hospital sought to recover no-fault benefits as assignee of Paul Knable. Allstate defended on grounds that the hospital had not responded to verification requests, thereby tolling the 30-day payment period indefinitely pursuant to Insurance Law § 5106(a).

The hospital moved for summary judgment, submitting evidence that it had filed proper claim forms and that more than 30 days had elapsed without payment. Allstate opposed, arguing that the plaintiff had failed to establish a prima facie case because it had not addressed whether verification requests were sent or whether the hospital had complied with such requests.

The lower court denied the hospital’s motion, and the plaintiff appealed to the Second Department. The central issue on appeal was whether the Etienne decision—decided shortly before—required the hospital to affirmatively prove compliance with verification requests or their absence as part of its prima facie case, or whether the insurer bore the burden of proving verification non-compliance as an affirmative defense.

Jason Tenenbaum’s Analysis:

Westchester Med. Ctr. v Allstate Ins. Co., 2013 NY Slip Op 08616 (2d Dept. 2013)

“Contrary to the primary argument advanced by the defendant insurance company, the plaintiff Westchester Medical Center, as assignee of Paul Knable (hereinafter the hospital), made a prima facie showing of entitlement to judgment as a matter of law on the first cause of action (see Viviane Etienne Medical Care, P.C., as assignee of Alem Cardenas v Country-Wide Ins. Co., _______ AD3d _______ ). In opposition, the defendant failed to raise a triable issue of fact as to whether, after receiving the hospital’s NF-5 claim form, the 30-day period within which to pay, deny, or seek verification of the no-fault claim was extended or tolled indefinitely due to the hospital’s failure to comply with a certain request for verification.”

I am thinking Plaintiff presented the billing affidavit of one of its affiants who either said the he submitted the entire medical records of the hospital or that he never received any verification requests. This is different from Mary Immaculate v. Allstate and Amaze v. Eagle days where all the affiant had to say was that more than 30-days elapsed and payment in full has not been made. I think the plaintiff bar was hoping Etienne would do that, but that is not the case. If a prima facie case made its way to other 3 departments, would they hold true to Mary Immaculate v. Allstate (which they are currently following) or would they follow Etienne, which continues to incorporate an Ave T. v. Auto One analysis?

Legal Significance

The Second Department’s decision in Westchester Medical Center establishes that the Etienne standard requires providers to address verification issues in their prima facie showing, but does not necessarily require extensive proof. The court’s statement that the hospital “made a prima facie showing” suggests that the plaintiff submitted affidavit testimony regarding either submission of medical records or non-receipt of verification requests—evidence that goes beyond the minimal showing permitted under Mary Immaculate.

This interpretation of Etienne creates a middle ground between the extremely lenient Mary Immaculate standard and an onerous requirement that providers produce comprehensive documentation of all communications with insurers. Providers must affirmatively address verification in their moving papers, but can satisfy this burden through affidavits stating that records were submitted or that no verification requests were received.

The court’s further statement that Allstate “failed to raise a triable issue of fact” regarding verification compliance suggests that insurers cannot defeat summary judgment with mere assertions that verification requests were sent. Instead, insurers must produce admissible evidence—typically proof of mailing coupled with verification request copies—demonstrating that requests were sent and remain outstanding. This burden-shifting framework protects providers from unsubstantiated verification defenses.

Jason Tenenbaum’s analysis highlights a critical question: will other Appellate Division departments follow Etienne, or will they adhere to their own precedents like Mary Immaculate? The First, Third, and Fourth Departments had developed their own approaches to prima facie cases before Etienne was decided. While the Second Department’s decisions carry persuasive authority, they do not bind other departments unless adopted or until addressed by the Court of Appeals.

The reference to “Ave T. v. Auto One analysis” in Jason Tenenbaum’s commentary suggests that Etienne incorporates principles from earlier Second Department cases that required providers to demonstrate either compliance with verification requests or the impropriety of such requests. This analytical framework differs significantly from Mary Immaculate, which essentially ignored verification issues at the prima facie stage and treated them purely as affirmative defenses for insurers to prove.

Practical Implications

For medical providers, Westchester Medical Center clarifies that summary judgment motions must include affidavit testimony addressing verification requests. At a minimum, providers should submit affidavits from billing personnel stating either: (1) that all requested medical records were provided to the insurer, or (2) that no verification requests were received. This relatively modest evidentiary requirement should not prove burdensome for providers with adequate record-keeping systems.

Providers should avoid relying on Mary Immaculate-style affidavits that merely recite that 30 days elapsed without payment. While such affidavits may remain sufficient in the First, Third, or Fourth Departments, Second Department practitioners must incorporate verification-related testimony. Failure to do so will result in denial of summary judgment motions even when claims are meritorious.

For insurance carriers, the decision confirms that verification defenses require substantiation through admissible evidence. Insurers cannot defeat provider motions by simply asserting in attorney affirmations that verification requests were sent. Instead, insurers must submit proof of mailing (typically through CPLR 4518(a) affidavits) and copies of the verification requests themselves. This evidentiary requirement prevents insurers from raising verification defenses as litigation tactics without factual support.

The divergence among Appellate Divisions regarding prima facie standards creates strategic considerations for both sides. When possible, parties may want to consider how choice of forum affects the applicable prima facie standard. However, venue rules typically constrain forum selection to the assignor’s residence or the defendant’s principal place of business, limiting strategic venue choices in most cases.

Related Articles

• Understanding verification requests and mailing requirements in no-fault claims
• Navigating additional verification challenges for healthcare providers
• When UB-04 forms alone are insufficient for prima facie cases
• Fourth Department’s analysis of prima facie case requirements
• New York No-Fault Insurance Law

Legal Update (February 2026): The standards for establishing prima facie cases in no-fault insurance claims may have evolved since this 2013 decision, particularly regarding verification request procedures and the burden of proof requirements under Insurance Law Section 5106. Practitioners should verify current provisions in the Insurance Regulations and recent appellate decisions, as the Department of Financial Services may have amended verification protocols and related procedural requirements.