November 13, 2020

Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co. (2020 NY Slip Op 51379(U))

https://www.beynensonlaw.com/case-law/gentlecare-ambulatory-anesthesia-servs-lyonel-f-paul-m-d-v-hereford-ins-co-2020-ny-slip-op-51379u/

Court: Appellate Term, Second Department
Decided: November 13, 2020
Citation: 2020 NY Slip Op 51379(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues Timeliness and preclusion

Cite as

Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co., 2020 NY Slip Op 51379(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.

A lack-of-coverage defense is not precluded by defects in, or untimeliness of, an insurer's denial of claim. The insurer established that the policy sued upon was a workers' compensation policy that did not cover the provider's claim for assigned first-party no-fault benefits. The provider neither demonstrated an applicable automobile policy issued by the insurer nor otherwise raised a triable factual issue. Following Ultimate Health Prods., Inc. v Hereford Ins. Co., the Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted the insurer's motion for summary judgment dismissing the complaint, and denied the provider's cross motion.

Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co. (2020 NY Slip Op 51379(U))

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

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul M.D., as Assignee of Chaundry, Figaro, Respondent,
against
Hereford Insurance Co., Appellant.

Goldberg, Miller and Rubin, P.C. (Timothy R. Bishop 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 (Sharon Bourne-Clarke, J.), entered November 8, 2018, deemed from a judgment of that court entered December 19, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 8, 2018 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,183.05.

ORDERED that the judgment is reversed, with $30 costs, the order dated November 8, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that defendant had established that there was no coverage for no-fault benefits since defendant had not issued an automobile insurance policy which would cover the underlying accident, and granting plaintiff’s cross motion for summary judgment. A judgment was subsequently entered on December 19, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

“[A] lack of coverage defense may be raised without regard to any issue as to the [*2]propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its [ ] motion were sufficient to establish that the policy being sued upon was a workers’ compensation insurance policy which did not cover plaintiff’s claim to receive reimbursement of assigned first-party no-fault benefits. As plaintiff failed to demonstrate the existence of an applicable automobile insurance policy issued by defendant or to otherwise raise a triable issue of fact, [defendant’s motion for summary judgment should have been granted]” (Ultimate Health Prods., Inc. v Hereford Ins. Co., 51 Misc 3d 127[A], 2016 NY Slip Op 50367[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Flatbush Chiropractic, P.C. v Hereford Ins. Co., 49 Misc 3d 149[A], 2015 NY Slip Op 51712[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the judgment is reversed, the order dated November 8, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion is denied.

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

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

Cited in this decision

A label shows how this decision treated the case it cites.

Ultimate Health Prods., Inc. v Hereford Ins. Co. (2016 NY Slip Op 50367(U)) FollowedA defense that no policy covers the claimed no-fault benefits is not precluded by defects in the insurer's denial or its timeliness.
Flatbush Chiropractic, P.C. v Hereford Ins. Co. (2015 NY Slip Op 51712(U)) FollowedA lack-of-coverage defense is not precluded by defects in the insurer's denial or its timeliness.

Cited by

A label shows how the later decision treated this one.

PFJ Med. Care, P.C. v Hereford Ins. Co. (2021 NY Slip Op 50637(U)) FollowedThe insurer's summary judgment motion asserting that it had issued no automobile policy covering the accident was granted on appeal.
Greenway Med. Supply Corp. v Repwest Ins. Co. (2022 NY Slip Op 51269(U))The defendant claims handler established that it had issued no automobile policy covering the accident and owed no no-fault coverage.
Matter of Hereford Ins. Co. v Corona Med. PC (2021 NY Slip Op 50991(U))A no-fault arbitration award against the insurer was vacated because its policy did not cover the assignor's rental vehicle.

Similar decisions

Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U))The insurer failed to establish timely denial mailing, and the provider failed to establish prima facie entitlement to payment.
Gentlecare Ambulatory Anesthesia Servs. v American Ind. Ins. Co. (2019 NY Slip Op 50635(U))The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal.
Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51653(U))The insurer's proof established presumptively timely mailing of EUO notices and the denial, as well as the provider's nonappearances.
Gentlecare Ambulatory Anesthesia Servs. v Country Wide Ins. Co. (2017 NY Slip Op 51102(U))The insurer's cross motion for summary judgment dismissing the provider's no-fault complaint was denied on appeal.
Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51773(U))An insurer need not state objective reasons for EUO requests to establish summary judgment based on a provider's nonappearance.