February 22, 2011

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 01458)

https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-new-york-cent-mut-fire-ins-co-2011-ny-slip-op01458/

Court
Appellate Division, Second Department
Decided
February 22, 2011
Citation
2011 NY Slip Op 01458 · 81 AD3d 929
Posture
Summary judgment
Outcome
Provider prevailed
Later treatment
Contrasted (cf., but see) in 1 and followed in 2 later decisions (see Cited by)
Issues
Timeliness and preclusion Provider's prima facie case
Legal questions
Proof of mailing · Claimant's prima facie case on motions (see the maps)
Cite as
Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 (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 defective denial and insufficient mailing proof precluded its intoxication exclusion defense. The hospital established mailing and receipt of its prescribed billing form and failure to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.5. One NF-10 omitted several material items of information, while the insurer failed to prove timely mailing of a second NF-10. It therefore neither raised a triable issue nor established entitlement to dismissal. Following Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., the failure to establish timely denial precluded the asserted intoxication exclusion. The Appellate Division, Second Department, reversed, granted the hospital's summary judgment motion and denied the insurer's cross motion.

Reported in New York Official Reports at Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 01458)

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co.
2011 NY Slip Op 01458 [81 AD3d 929]
February 22, 2011
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 30, 2011
Westchester Medical Center, as Assignee of Robert Hostetter, Appellant,
v
New York Central Mutual Fire Insurance Company, Respondent.

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

Lawrence N. Rogak, LLC, Oceanside, N.Y. (David A. Gierasch of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Parga, J.), dated August 3, 2010, which denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for summary judgment on the complaint is granted, and the defendant’s cross motion for summary judgment dismissing the complaint is denied.

The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2009]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020 [2007]).

In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff’s claim. The defendant’s denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Thus, the defendant also failed to make a prima facie showing that it timely denied the claim in support of its cross motion for summary judgment [*2]dismissing the complaint.

Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]). Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the complaint and should have denied the defendant’s cross motion for summary judgment dismissing the complaint. Angiolillo, J.P., Belen, Chambers and Roman, JJ., concur.

Similar decisions