November 15, 2011

Lenox Hill Hosp. v Government Empls. Ins. Co. (2011 NY Slip Op 08330)

https://www.beynensonlaw.com/case-law/lenox-hill-hosp-v-government-empls-ins-co-2011-ny-slip-op-08330/

Court: Appellate Division, Second Department
Decided: November 15, 2011
Citation: 2011 NY Slip Op 08330 · 89 AD3d 905
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Timeliness and preclusion Provider's prima facie case Discovery and procedure
Legal questions: Proof of mailing · Claimant's prima facie case on motions (see the maps)

Cite as

Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905 (2d Dept 2011)

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 evidence of a timely denial raised a triable issue defeating the provider's motion based solely on untimeliness. The provider sought summary judgment on the first cause of action under 11 NYCRR 65-3.8 (c), alleging that the insurer failed to pay or deny within 30 days. The insurer's only burden was to raise a factual issue concerning timely payment or denial, which its denial evidence satisfied. The provider's challenge to the evidentiary form of the supporting medical reports was improperly raised for the first time in reply. The Appellate Division, Second Department, affirmed denial of the provider's motion.

Reported in New York Official Reports at Lenox Hill Hosp. v Government Empls. Ins. Co. (2011 NY Slip Op 08330)

Lenox Hill Hosp. v Government Empls. Ins. Co.

2011 NY Slip Op 08330 [89 AD3d 905]

November 15, 2011

Appellate Division, Second Department

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

As corrected through Wednesday, January 4th, 2012

Lenox Hill Hospital, as Assignee of Hector Jamie Robles, Appellant, et al., Plaintiff,
v
Government Employees Insurance Company, Respondent.

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

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

In an action to recover payment of no fault benefits under a policy of automobile insurance, the plaintiff Lenox Hill Hospital, as assignee of Hector Jamie Robles, appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered April 21, 2011, which denied its motion for summary judgment on the first cause of action.

Ordered that the order is affirmed, with costs.

Given the limited nature of the plaintiff’s motion for summary judgment, which established the plaintiff’s prima facie entitlement to judgment as a matter of law solely on the ground that the defendant did not pay or deny the subject claim within 30 days (see 11 NYCRR 65-3.8 [c]), the defendant’s only burden in opposition to the motion was to raise a triable issue of fact regarding its timely payment or denial of the claim (see e.g. Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]). The defendant succeeded in raising such an issue of fact by submitting evidence that it sent the plaintiff a denial of claim form within the 30-day time limit. Accordingly, the motion was properly denied without regard to the plaintiff’s additional contention, improperly raised for the first time in its reply papers on the motion (see Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825, 826 [2009]), that the medical reports upon which the defendant relied to establish the merits of its denial of the claim were not in proper evidentiary form. Mastro, J.P., Chambers, Sgroi and Miller, JJ., concur.

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.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the insurer's evidence that it sent a denial of claim form within the 30-day limit raised a triable issue of timely denial, so the provider's summary judgment motion was properly denied.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Claimant's prima facie case on motions

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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 provider's limited motion established prima facie entitlement because the insurer did not pay or deny within 30 days, but the insurer's evidence of a timely denial raised a triable issue.

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

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

Westchester Med. Ctr. v Clarendon Natl. Ins. Co. (2008 NY Slip Op 09786) FollowedThe insurer raised a triable issue whether it timely and properly denied a claim based on alleged intoxication after receiving verification.

Cited by

A label shows how the later decision treated this one.

Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2011 NY Slip Op 08747) FollowedThe 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 A Cent. Ins. Co. (2014 NY Slip Op 01319) FollowedThe insurer raised a factual issue as to whether it mailed a proper denial 22 days after receiving requested verification.
American Tr. Ins. Co. v Beach Med. Rehabilitation, P.C. (2026 NY Slip Op 03771) FollowedThe insurer failed to raise a triable issue on timely denials or causation in its action for de novo review of no-fault claims.

Similar decisions

Mount Sinai Hosp. v Government Empls. Ins. Co. (2011 NY Slip Op 05679)The insurer raised a triable issue as to whether it issued a denial of claim form to the hospital.
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.
Montefiore Med. Ctr. v Government Empls. Ins. Co. (2006 NY Slip Op 08953)An insurer's additional verification request following an N-F5 submission need not use a prescribed form to toll the payment deadline.
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.