November 9, 2018
Active Care Med. Supply Corp. v Hartford Ins. Co. (2018 NY Slip Op 51591(U))
https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-hartford-ins-co-2018-ny-slip-op51591u/
- Decided
- November 9, 2018
- Citation
- 2018 NY Slip Op 51591(U) · 61 Misc 3d 139(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Workers' comp or other insurer primary (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 Active Care Med. Supply Corp. v Hartford Ins. Co. (2018 NY Slip Op 51591(U))
| Active Care Med. Supply Corp. v Hartford Ins. Co. |
| 2018 NY Slip Op 51591(U) [61 Misc 3d 139(A)] |
| Decided on November 9, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-189 K C
against
Hartford Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. The Law Office of Tobias & Kuhn (Marisa Villeda of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered December 17, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment. The court found that defendant had established that there was no coverage for no-fault benefits since defendant had demonstrated that the Workers’ Compensation Board had awarded workers’ compensation benefits to plaintiff’s assignor for injuries she had sustained in the accident which gave rise to the claims at issue.
Contrary to plaintiff’s contention, a lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its motion, and by plaintiff in support of its cross motion, established that plaintiff had submitted claims for workers’ compensation benefits and that the Workers’ Compensation Board had awarded plaintiff’s assignor workers’ compensation benefits [*2]for injuries she had sustained in the accident at issue. As plaintiff failed to demonstrate the existence of a triable issue of fact, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018
Legal questions
A question 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.
Can a no-fault insurer deny or delay payment because workers’ compensation or another insurer is primary?
This decision: Workers' compensation is primary and the claim against the no-fault insurer is dismissed or denied
Held the complaint properly dismissed because the Board had awarded workers' compensation benefits for the injuries from this accident, a lack-of-coverage defense that may be raised regardless of the timeliness of the denial.
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.
Similar decisions
- Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50825(U))The insurer's motion for summary judgment dismissing the provider's complaint for assigned no-fault benefits was granted.
- Ultimate Health Prods., Inc. v Hereford Ins. Co. (2016 NY Slip Op 50367(U))A defense that no policy covers the claimed no-fault benefits is not precluded by defects in the insurer's denial or its timeliness.
- Flatbush Chiropractic, P.C. v Hereford Ins. Co. (2015 NY Slip Op 51712(U))A lack-of-coverage defense is not precluded by defects in the insurer's denial or its timeliness.
- Active Care Med. Supply Corp. v ELRAC, Inc. (2018 NY Slip Op 50826(U))The self-insurer established timely mailing of its denial, and the provider's remaining argument was raised for the first time on appeal.
- Quality Health Prod., Inc. v American Tr. Ins. Co. (2019 NY Slip Op 51950(U))The insurer established an employment-related coverage issue requiring an initial determination by the Workers' Compensation Board.