May 30, 2012
Westchester Med. Ctr. v Hereford Ins. Co. (2012 NY Slip Op 04156)
https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-hereford-ins-co-2012-ny-slip-op-04156/
- Decided
- May 30, 2012
- Citation
- 2012 NY Slip Op 04156 · 95 AD3d 1306
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
- Legal questions
- Proof of mailing · Claimant's prima facie case on motions (see the maps)
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.
Reported in New York Official Reports at Westchester Med. Ctr. v Hereford Ins. Co. (2012 NY Slip Op 04156)
| Westchester Med. Ctr. v Hereford Ins. Co. |
| 2012 NY Slip Op 04156 [95 AD3d 1306] |
| May 30, 2012 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Westchester Medical Center, as Assignee of Shaheen Akhtar,
Appellant, v Hereford Insurance Company, Respondent. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.
Lawrence R. Miles, Long Island City, N.Y., for respondent.
In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), entered September 1, 2011, as denied its motion for summary judgment on the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff’s motion for summary judgment on the complaint is granted.
The plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing form had been mailed to and received by the defendant 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]; 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]).
In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact. A presumption of receipt was created by the certified mail receipt and the signed return receipt card, such that the defendant’s mere denial of receipt was insufficient to raise a triable issue of fact (see New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730-731 [2007]; Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981, 982-983 [2007]). Further, the defendant’s failure to respond to the no-fault billing within the requisite 30-day period precluded it from raising the defenses that it was not provided with timely notice of the underlying motor vehicle accident or proof of claim (see Bayside Rehab & Physical Therapy, P.C. v GEICO Ins. Co., 24 Misc 3d 542, 545 [2009]; Rockman v Clarendon Natl. Ins. Co., 21 Misc 3d 1118[A], 2008 NY Slip Op 52093[U] [Civ Ct, Richmond County 2008]; Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52442[U] [App Term, 2d Dept 2008]). Finally, although the defense of lack of coverage is not precluded by the defendant’s failure to pay or deny the subject no-fault claim within the requisite 30-day period (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d [*2]312, 318 [2007]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), here, the defendant’s submissions were insufficient to raise triable issues of fact with respect to a lack of coverage defense (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011]; D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 24 Misc 3d 138[A], 2009 NY Slip Op 51584[U] [App Term, 2d Dept 2009]). Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the complaint. Rivera, J.P., Belen, Sgroi and Miller, JJ., concur. [Prior Case History: 2011 NY Slip Op 32398(U).]
Legal questions (2)
Questions 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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The provider's or claimant's proof established mailing of its claim form, NF-2 or verification response
Held the certified mail receipt and signed return receipt card created a presumption of receipt of the provider's bill that the insurer's mere denial of receipt did not rebut.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Held the hospital made its prima facie showing by evidence that the billing form was mailed to and received by the insurer, which neither paid nor denied within 30 days.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- New York & Presbyt. Hosp. v Countrywide Ins. Co. (2007 NY Slip Op 07675) FollowedThe insurer raised verification and billing-date issues on one claim, but failed to rebut proof of receipt of verification on another.
- Westchester Med. Ctr. v Liberty Mut. Ins. Co. (2007 NY Slip Op 04483) FollowedThe hospital's mailing evidence established receipt of requested verification, defeating the insurer's claim that verification remained outstanding.
- Bayside Rehab & Physical Therapy, P.C. v GEICO Ins. Co. (2009 NY Slip Op 29145) FollowedAn insurer need not notify a prospective provider of an IME cutoff determined before submission of the provider's claim.
- Rockman v Clarendon Natl. Ins. Co. (2008 NY Slip Op 52093(U)) FollowedThe provider failed to rebut the insurer's timely preserved defense that proof of claim was submitted beyond the 180-day deadline.
- Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52442(U)) FollowedThe insurer failed to establish timely denials or that it did not insure the assignor's vehicle on the loss date.
- Mercury Cas. Co. v Encare, Inc. (2011 NY Slip Op 08969) FollowedAn insurer cannot avoid preclusion of a fee-schedule defense by treating excessive fees as a lack of coverage.
- D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51584(U)) FollowedThe insurer's verification follow-ups mailed on the 30th calendar day were premature and did not toll its time to pay or deny.
Cited by
A label shows how the later decision treated this one.
- Westchester Med. Ctr. v Allstate Ins. Co. (2014 NY Slip Op 00655) FollowedThe provider obtained summary judgment because neither the insurer's asserted verification request nor its denial was sent within 30 days.
- Nyack Hosp. v Allstate Ins. Co. (2014 NY Slip Op 00641) FollowedThe insurer waived objections to deficient claim forms by failing to contest their adequacy timely at the claims stage.
- 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.
- New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp. (2014 NY Slip Op 00639)Outstanding verification warranted dismissal of the first cause of action, but defective verification proof supported payment on the second.
- New York Univ. Hosp.-Tisch Inst. v Government Empls. Ins. Co. (2014 NY Slip Op 03812)The insurer raised a factual issue as to whether verification requests tolled the deadline and its denial was timely.
- 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.
- Westchester Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 00500)The insurer's contention that a complete absence of coverage survived its untimely denial was improperly raised for the first time on appeal.
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 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.
- 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.
- 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.