June 18, 2009

Inwood Hill Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. (2009 NY Slip Op 51264(U))

https://www.beynensonlaw.com/case-law/inwood-hill-med-p-c-v-metropolitan-prop-cas-ins-co-2009-ny-slip-op51264u/

Court: Appellate Term, Second Department
Decided: June 18, 2009
Citation: 2009 NY Slip Op 51264(U) · 24 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion Priority, other coverage
Legal questions: Proof of mailing · Workers' comp or other insurer primary (see the maps)

Cite as

Inwood Hill Med., P.C. v Metropolitan Prop. & Cas. Ins. Co., 24 Misc 3d 127(A), 2009 NY Slip Op 51264(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2009)

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 was precluded from asserting a workers' compensation defense because it failed to establish timely mailing of its denial. The providers sought assigned no-fault benefits, and the District Court dismissed the complaint and referred the employment issue to the Workers' Compensation Board. The denial was dated two years after the services were rendered, and the insurer neither alleged nor established timely mailing. Its sole defense was that the assignor was acting as an employee when the accident occurred. The Appellate Term, Second Department, reversed, denied dismissal, granted the providers' cross motion for summary judgment, and remitted for statutory interest and attorney's fees under Insurance Law § 5106 (a).

Reported in New York Official Reports at Inwood Hill Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. (2009 NY Slip Op 51264(U))

[*1]

Inwood Hill Med., P.C. v Metropolitan Prop. & Cas. Ins. Co.

2009 NY Slip Op 51264(U) [24 Misc 3d 127(A)]

Decided on June 18, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., TANENBAUM and MOLIA, JJ
2008-1165 N C.

Inwood Hill Medical, P.C. and BRONX NEURODIAGNOSTIC, P.C. a/a/o JUANITO SANTANA, Appellants,
against
Metropolitan Property and Casualty Insurance Company d/b/a METLIFE AUTO & HOME, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (David Goodsell, J.), entered April 7, 2008. The order granted defendant’s motion to dismiss the complaint and implicitly denied plaintiffs’ cross motion for summary judgment.Order reversed without costs, defendant’s motion to dismiss the complaint denied, plaintiffs’ cross motion for summary judgment granted and matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by providers to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint and plaintiffs cross-moved for summary judgment. The District Court found that plaintiffs had established their prima facie entitlement to summary judgment, but granted defendant’s motion, finding that the court did not have jurisdiction over the issue of whether plaintiffs’ assignor was in the course of employment at the time of the accident. The court referred the matter to the Workers’ Compensation Board to make that determination. Plaintiffs appeal, arguing that defendant should be precluded from asserting this defense as a result of its failure to timely deny the claim and, as a result, that their motion for summary judgment should have been granted. [*2]

Since defendant raised no issue in the District Court with regard to plaintiffs’ prima facie case, we do not pass upon the propriety of the District Court’s determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Defendant failed to allege, let alone establish, that its denial of claim form, which was dated February 21, 2005, two years after the services at issue were rendered, was timely mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2007]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2007]; Delta Diagnostic Radiology, P.C. v GEICO Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50137[U] [App Term, 9th & 10th Jud Dists 2006]). Defendant is, therefore, precluded from asserting most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its only proffered defense, that plaintiffs’ assignor was acting as an employee at the time of the accident (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

Accordingly, the order is reversed, plaintiffs’ motion for summary judgment is granted, and the matter is remitted to the District Court for the calculation of statutory
interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 18, 2009

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

Open the full map

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

This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer failed to allege, let alone establish, that its denial form, dated two years after the services, was timely mailed, so it was precluded from its defense.

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, 260 (this one included) are in the same category.

Workers' comp or other insurer primary

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Can a no-fault insurer deny or delay payment because workers’ compensation or another insurer is primary?

This decision: The insurer may not rely on workers' compensation because it did not raise it in time

Reversed a referral to the Workers' Compensation Board, holding the insurer, which never showed timely mailing of its denial, was precluded from asserting its only defense that the assignor was acting as an employee.

Referred to WC BoardWC primary: claim failsWC defense not shownWC defense precludedFirst insurer must payNo coverage, not priorityThis decisionCites it or cited by itCited or followed

Of the 69 decisions on this question in the Second Department courts and the Court of Appeals, 10 (this one included) are in the same category.

Cited in this decision

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

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 50137(U)) FollowedThe insurer failed to prove timely mailing of its denial and was precluded from asserting lack of medical necessity.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.

Similar decisions

Inwood Hill Med., P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 51397(U))The insurer failed to prove the assignor's EUO and IME nonappearances, while the providers failed to authenticate their billing records.
Inwood Hill Med. P.C. v Utica Mut. Ins. Co. (2007 NY Slip Op 51309(U))The insurer's late denials precluded its statutory, policy-condition, exclusion, and fraudulent-billing defenses.
Westchester Neurodiagnostic, P.C. v Allstate Ins. Co. (2009 NY Slip Op 51385(U))The insurer failed to establish that its medical necessity defense was preserved by timely mailing of the denial.
Lynbrook Med., P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 51841(U))The providers failed to establish entitlement to summary judgment because they did not show that the insurer's timely denials lacked merit.
Inwood Hill Med., P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51129(U))The providers' medical biller failed to establish admissibility of the supporting documents, defeating their motion for summary judgment.