November 20, 2015

Flatbush Chiropractic, P.C. v Hereford Ins. Co. (2015 NY Slip Op 51712(U))

https://www.beynensonlaw.com/case-law/flatbush-chiropractic-p-c-v-hereford-ins-co-2015-ny-slip-op51712u/

Court: Appellate Term, Second Department
Decided: November 20, 2015
Citation: 2015 NY Slip Op 51712(U) · 49 Misc 3d 149(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues Timeliness and preclusion

Cite as

Flatbush Chiropractic, P.C. v Hereford Ins. Co., 49 Misc 3d 149(A), 2015 NY Slip Op 51712(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 the insurer's denial or its timeliness. The provider sought assigned no-fault benefits under a policy that the insurer established was a workers' compensation policy, rather than an automobile policy covering the claim. Following Zappone v Home Ins. Co. and Central Gen. Hosp. v Chubb Group of Ins. Cos., that lack of coverage could be raised irrespective of the propriety or timing of a denial. The provider failed to demonstrate an applicable automobile policy issued by the insurer or raise a triable issue. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at Flatbush Chiropractic, P.C. v Hereford Ins. Co. (2015 NY Slip Op 51712(U))

[*1]

Flatbush Chiropractic, P.C. v Hereford Ins. Co.

2015 NY Slip Op 51712(U) [49 Misc 3d 149(A)]

Decided on November 20, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-829 Q C

Flatbush Chiropractic, P.C. as Assignee of ANDRE PHANOR, Appellant,
against
Hereford Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered March 12, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion, and granted defendant’s cross motion 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.

Contrary to plaintiff’s contention, a lack of coverage defense may be raised without regard to any issue as to the 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 cross 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, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 20, 2015

Cited by

A label shows how the later decision treated this one.

Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co. (2020 NY Slip Op 51379(U)) FollowedA lack-of-coverage defense is not precluded by defects in, or untimeliness of, an insurer's denial of claim.
A.C. Med. P.C. v MVAIC (2018 NY Slip Op 51533(U))MVAIC established lack of coverage, and the provider failed to show exhaustion of remedies against the known vehicle owner.

Similar decisions

Ultimate Health Prods., Inc. v Hereford Ins. Co. (2016 NY Slip Op 50367(U))A 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 State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50758(U))The insurer proved timely mailing of EUO notices and denials, and the provider's failure to respond foreclosed its justification objections.
Compas Med., P.C. v Hereford Ins. Co. (2017 NY Slip Op 51083(U))The insurer's record-search affidavit established that no relevant policy was in effect on the accident date, and the provider raised no factual issue.
Active Care Med. Supply Corp. v Hartford Ins. Co. (2018 NY Slip Op 51591(U))A lack-of-coverage defense based on workers' compensation benefits is not precluded by defects in or untimeliness of a no-fault denial.
Flatbush Chiropractic, P.C. v Omni Indem. Co. (2014 NY Slip Op 51235(U))The insurer established that the provider had sued the wrong carrier because another insurer had issued the policy covering the accident.