January 31, 2007
Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co. (2007 NY Slip Op 50163(U))
https://www.beynensonlaw.com/case-law/vista-surgical-supplies-inc-v-state-farm-mut-ins-co-2007-ny-slip-op-50163u/
- Decided
- January 31, 2007
- Citation
- 2007 NY Slip Op 50163(U) · 14 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- No covered accident (founded belief) · Proof of mailing (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 Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co. (2007 NY Slip Op 50163(U))
| Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co. |
| 2007 NY Slip Op 50163(U) [14 Misc 3d 135(A)] |
| Decided on January 31, 2007 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., RIOS and BELEN, JJ
2005-1963 K C.
against
State Farm Mutual Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Milagros A. Matos, J.), entered October 27, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
In this action to recover assigned first-party no-fault benefits, we do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raises no issue with respect thereto.
Defendant’s assertion that it timely denied the claims lacks merit because the
record does not contain an affidavit from a person with personal knowledge either stating that the denial of claim forms were mailed or setting forth “a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing” (S&M Supply Inc. v Progressive Ins. Co., 8 Misc 3d 138[A], 2005 NY Slip Op 51312[U] [App Term, 2d & 11th Jud Dists]). Since defendant failed to establish that it paid or denied the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses including its defense of lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]) and its defenses of fraudulent billing and excessive fees (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]).
However, defendant was not precluded from asserting its defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit of defendant’s investigator was sufficient to demonstrate that the defense was based upon a [*2]“founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since defendant raised a triable issue of fact as to whether there was a lack of coverage, the lower court properly denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).
Pesce, P.J., Rios and Belen, 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.
Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Founded belief shown; the question must be tried
Held the investigator's affidavit showed a founded belief that the collision was part of an insurance fraud scheme, raising a triable issue that defeated the provider's summary judgment despite the untimely denial.
Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Held the insurer failed to prove timely denial because no affidavit from a person with knowledge stated that the denials were mailed or described a detailed standard office mailing procedure.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- S&M Supply Inc. v Progressive Ins. Co. (2005 NYSlipOp 51312(U)) FollowedThe insurer's excessive-charge defenses failed because one denial was untimely and the other lacked admissible proof or a valid regulatory basis.
- Careplus Med. Supply Inc. v State-Wide Ins. Co. (2005 NY Slip Op 25545) FollowedThe insurer's completed denial form established receipt of the provider's claims and showed that the denial was untimely.
Cited by
A label shows how the later decision treated this one.
- Infinity Health Prods., Ltd. v Eveready Ins. Co. (2008 NY Slip Op 28271) FollowedThe insurer's follow-up verification demand, mailed 27 days after its initial demand, was premature and did not toll the claim determination period.
Similar decisions
- Vista Surgical Supplies, Inc. v General Assur. Co. (2006 NY Slip Op 51034(U))The provider's action was premature because timely verification requests remained unanswered when the action began.
- Vista Surgical Supplies, Inc. v Allstate Ins. Co. (2006 NY Slip Op 51332(U))The provider's deficient mailing proof and ambiguous postal documentation left claim submission unresolved, defeating both summary judgment motions.
- Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 51556(U))The provider failed to establish claim submission because its mailing proof did not connect the claims to the certified mail receipt.
- Vista Surgical Supplies Inc. v Allstate Ins. Co. (2006 NY Slip Op 52520(U))The provider failed to prove mailing of its claim, while the insurer established that it had never received the claim.
- Vista Surgical Supplies, Inc. v American Tr. Ins. Co. (2006 NY Slip Op 52470(U))The provider failed to prove claim submission in its moving papers and could not supply that essential element through inadmissible reply material.