January 29, 2014

Westchester Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 00500)

https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-government-empls-ins-co-2014-ny-slip-op00500/

Court: Appellate Division, Second Department
Decided: January 29, 2014
Citation: 2014 NY Slip Op 00500 · 113 AD3d 842
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Provider's prima facie case Timeliness and preclusion
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Westchester Med. Ctr. v Government Empls. Ins. Co., 113 AD3d 842 (2d Dept 2014)

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.

The insurer's contention that a complete absence of coverage survived its untimely denial was improperly raised for the first time on appeal. The provider established through admissible evidence that its prescribed billing form was mailed to and received by the insurer, which failed to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). The insurer's opposition raised no triable issue of fact. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and granted the provider summary judgment on its first cause of action. The court did not reach the provider's remaining contentions.

Reported in New York Official Reports at Westchester Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 00500)

Westchester Med. Ctr. v Government Empls. Ins. Co.

2014 NY Slip Op 00500 [113 AD3d 842]

January 29, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 5, 2014

Westchester Medical Center, as Assignee of Arianna Thrasher, Appellant, et al., Plaintiffs,
v
Government Employees Insurance Company, Respondent.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Spina, Korshin & Welden, Woodbury, N.Y. (Jeanne M. Ortega and P. Stephanie Estevez of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff Westchester Medical Center, as assignee of Arianna Thrasher, appeals from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 23, 2012, as denied that branch of its motion which was for summary judgment on its first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the plaintiff Westchester Medical Center, as assignee of Arianna Thrasher, which was for summary judgment on its first cause of action is granted.

The plaintiff Westchester Medical Center, as assignee of Arianna Thrasher (hereinafter the appellant), made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence in admissible form that the prescribed statutory billing form had been mailed to and received by the respondent insurer, which failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306-1307 [2012]; Westchester Med. Ctr. v Lancer Ins. Co., 94 AD3d 984, 984 [2012]; NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136, 1137 [2011]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2009]).

Contrary to the Supreme Court’s determination, the respondent, in opposition to the appellant’s prima facie showing, failed to raise a triable issue of fact.

The respondent’s contention that there was a complete absence of coverage that could be asserted as a basis for disclaimer notwithstanding its failure to comply with the 30-day rule set forth in Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) (see generally Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Zappone v Home [*2]Ins. Co., 55 NY2d 131 [1982]), is improperly raised for the first time on appeal, and, therefore, is not properly before this Court.

In light of our determination, we need not reach the plaintiff’s remaining contentions. Mastro, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.

Legal questions

A question 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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case

Held the hospital made its prima facie showing with admissible evidence that the billing form was mailed to and received by the insurer, which neither paid nor denied within 30 days.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.

Cited in this decision

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430)A provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Westchester Med. Ctr. v Hereford Ins. Co. (2012 NY Slip Op 04156)The provider proved mailing and receipt of its bill and the insurer's failure to pay or deny within 30 days; the insurer failed to raise a triable issue.
Westchester Med. Ctr. v Lancer Ins. Co. (2012 NY Slip Op 02867)The insurer defeated the provider's summary judgment motion by proving timely verification requests and denial after verification was received.
Mount Sinai Hosp. v Country Wide Ins. Co. (2011 NY Slip Op 05680)The insurer raised factual issues about policy exhaustion during a verification toll and payment with overdue interest before suit.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589)The insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946)An insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.

Similar decisions

Westchester Med. Ctr. v A Cent. Ins. Co. (2014 NY Slip Op 01319)The insurer raised a factual issue as to whether it mailed a proper denial 22 days after receiving requested verification.
Westchester Med. Ctr. v Country Wide Ins. Co. (2011 NY Slip Op 03838)The insurer raised a triable issue as to whether the hospital fully complied with its verification demand.
Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2011 NY Slip Op 08747)The insurer's timely denial defeated summary judgment on the provider's first cause of action alleging failure to pay or deny.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 01166)An insurer's denial need not include a peer review report or other medical evidence when issued under 11 NYCRR 65-3.8.