September 18, 2007

New York & Presbyt. Hosp. v Selective Ins. Co. of Am. (2007 NY Slip Op 06848)

https://www.beynensonlaw.com/case-law/new-york-presbyt-hosp-v-selective-ins-co-of-am-2007-ny-slip-op06848/

Court: Appellate Division, Second Department
Decided: September 18, 2007
Citation: 2007 NY Slip Op 06848 · 43 AD3d 1019
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Staged accidents, lack of coverage
Legal questions: No covered accident (founded belief) · Claimant's prima facie case on motions (see the maps)

Cite as

New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 (2d Dept 2007)

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 conclusory medical affidavit failed to raise a factual issue that the treated condition was unrelated to the automobile accident. The hospital sought summary judgment for unpaid no-fault benefits, and the insurer cross-moved to dismiss. Under 11 NYCRR 65-3.8 (a), benefits become overdue 30 days after receipt of proof of claim, including relevant verification requested under 11 NYCRR 65-3.5. The hospital established its prima facie entitlement through proof of mailing the prescribed billing form and nonpayment within 30 days. The insurer supplied no admissible factual or evidentiary foundation for its claimed lack of accident-related coverage; its expert affidavit was speculative and unsupported. The Appellate Division, Second Department, affirmed the judgment for the provider.

Reported in New York Official Reports at New York & Presbyt. Hosp. v Selective Ins. Co. of Am. (2007 NY Slip Op 06848)

New York & Presbyt. Hosp. v Selective Ins. Co. of Am.

2007 NY Slip Op 06848 [43 AD3d 1019]

September 18, 2007

Appellate Division, Second Department

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

As corrected through Wednesday, November 7, 2007

New York and Presbyterian Hospital, Respondent,
v
Selective Insurance Company of America, Appellant.

—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Rosa Maria Patrone of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Lally, J.), entered October 3, 2006, which granted the plaintiff’s motion for summary judgment on the complaint and denied its cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered November 2, 2006, which, upon the order, is in favor of the plaintiff and against it in the principal sum of $27,532.36.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been [*2]considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits was overdue (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). 11 NYCRR 65-3.8 (a) provides that no-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, which shall include verification of all of the relevant information requested pursuant to 11 NYCRR 65-3.5.

The plaintiff hospital made a prima facie showing on its summary judgment motion that it had mailed the prescribed statutory billing form and did not receive payment in 30 days. In opposition, the defendant insurer failed to raise a triable issue of fact. Specifically, the defendant failed to come forward with proof in admissible form to demonstrate ” ‘the fact’ or the evidentiary ‘found[ation for its] belief’ that the patient’s treated condition was unrelated to his or her automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [1999], quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]). The affidavit of its medical expert was conclusory, speculative, and unsupported by the evidence. Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the complaint.

The defendant’s remaining contention is without merit. Spolzino, J.P., Skelos, Lifson and Balkin, 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.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Insurer's proof did not raise an issue or failed at trial; provider prevails on it

Held the insurer failed to raise a triable issue that the treated condition was unrelated to the accident because its medical expert's affidavit was conclusory, speculative and unsupported by the evidence, so the hospital's summary judgment was affirmed.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 80 (this one included) are in the same category.

Claimant's prima facie case on motions

Open the full map

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 proof that it mailed the statutory billing form and did not receive payment within 30 days.

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

Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.

Cited by (13)

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.
New York & Presbyt. Hosp. v American Tr. Ins. Co. (2007 NY Slip Op 09376) FollowedThe insurer raised a factual issue by showing a timely denial based on bills submitted more than 45 days after the last medical service.
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.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787)A provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. (2009 NY Slip Op 00351)Judicially noticed diagnosis codes alone do not establish that treatment was wholly unrelated to an insured automobile accident.
Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51065(U))The insurer failed to prove timely denial mailing and was precluded from asserting lack of medical necessity.
Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 01458)The insurer's defective denial and insufficient mailing proof precluded its intoxication exclusion defense.
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.
Uniondale Chiropractic Off. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51687(U))The provider proved mailing of disputed bills, while the insurer failed to prove timely denials preserving its medical-necessity defense.
Lenox Hill Radiology v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 28275)The insurer failed to prove its MRI fee reduction, and the provider failed to establish a business-record foundation for its claim form.

Show all 13 citing decisions

Similar decisions

New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 05602)The insurer proved a timely denial but failed to establish that the provider's treatment was unrelated to the accident.
New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 01537)The hospital established receipt of its no-fault billing and the insurer's failure to respond within the required 30-day period.
New York & Presbyt. Hosp. v Countrywide Ins. Co. (2007 NY Slip Op 07675)The insurer raised verification and billing-date issues on one claim, but failed to rebut proof of receipt of verification on another.
Nyack Hosp. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 04304)The hospital obtained summary judgment because the insurer failed to raise admissible factual issues on causation and policy cancellation.
New York & Presbyt. Hosp. v AIU Ins. Co. (2005 NY Slip Op 06014)A resubmitted no-fault claim previously and timely denied is not subject to a new 30-day payment-or-denial period.