Key Takeaway
Second Department Appellate Term applies Viviane Etienne precedent differently than First Department, showing varying interpretations of prima facie standards in no-fault cases.
Understanding the Viviane Etienne Standard Across Different Courts
The landmark Viviane Etienne Medical Care, P.C. v Country-Wide Insurance Co. decision established crucial precedent for prima facie cases in New York no-fault insurance litigation. However, as these recent Second Department Appellate Term decisions demonstrate, different courts may interpret and apply the Etienne standard with varying degrees of scrutiny.
These cases illustrate how the burden of proof operates in practice when medical providers seek summary judgment for unpaid no-fault benefits. The outcomes reveal important nuances in how courts evaluate both the plaintiff’s initial showing and the defendant’s response when establishing a prima facie case.
Jason Tenenbaum’s Analysis:
EMA Acupuncture v Statewide Ins. Co., 2015 NY Slip Op 51622(U)(App. Term 2d Dept. 2015)
“In opposition to plaintiff’s prima facie showing of entitlement to judgment as a matter of law on its complaint to recover first-party no-fault benefits (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 ), defendant failed to raise a triable issue. While defendant contended that the claim was premature because plaintiff failed to respond to its verification requests, the affidavit of defendant’s no-fault claims supervisor, who had no personal knowledge that the verification letters were actually mailed, and described in only the most general terms her office’s mailing practices and procedures, was insufficient to raise an issue of fact (see Westchester Med. Ctr. v Countrywide Co., 45 AD3d 676, 677 ).”
Compas Med., P.C. v Geico Ins. Co., 2015 NY Slip Op 51590(U)(App. Term 2d Dept. 2015)
“Plaintiff’s contention that it was entitled to summary judgment upon its third cause of action lacks merit. Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498)“
Key Takeaway
These decisions highlight the critical importance of establishing proper foundation evidence in no-fault litigation. While EMA Acupuncture succeeded because the insurer’s verification defense lacked adequate proof, Compas Medical failed to meet the basic Etienne requirements. The contrast shows how the timing and adequacy of denials remain central to successful summary judgment motions.
