August 23, 2012

Biddle v Safeco Ins. Co. (2012 NY Slip Op 51642(U))

https://www.beynensonlaw.com/case-law/biddle-v-safeco-ins-co-2012-ny-slip-op-51642u/

Court: Appellate Term, Second Department
Decided: August 23, 2012
Citation: 2012 NY Slip Op 51642(U) · 36 Misc 3d 148(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion Policy issues
Legal questions: Proof of mailing (see the maps)

Cite as

Biddle v Safeco Ins. Co., 36 Misc 3d 148(A), 2012 NY Slip Op 51642(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 failed to prove timely denial because its claims representative's affidavit was not evidence in admissible form. The insurer sought summary judgment dismissing the provider's assigned no-fault claim based on the assignor's alleged misrepresentation of residence when the policy was issued. The provider challenged the affidavit's admissibility under Real Property Law § 299-a (1). Without admissible proof of a timely denial, the insurer did not establish that its residence-misrepresentation defense was not precluded. The Appellate Term, Second Department, affirmed the order denying the insurer's motion for summary judgment.

Reported in New York Official Reports at Biddle v Safeco Ins. Co. (2012 NY Slip Op 51642(U))

[*1]

Biddle v Safeco Ins. Co.

2012 NY Slip Op 51642(U) [36 Misc 3d 148(A)]

Decided on August 23, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1788 K C.

Paul Biddle, M.D. as Assignee of CAMESHA DUHANEY, Respondent, – –
against
Safeco Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered November 18, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

As argued by plaintiff in opposition to defendant’s motion for summary judgment, the affidavit of defendant’s claims representative did not constitute evidence in admissible form (see Real Property Law § 299-a [1]). As a result, defendant’s motion papers failed to establish that defendant’s denial of claim form was timely and that defendant’s proffered defense that plaintiff’s assignor had misrepresented her residence in connection with the issuance of the subject insurance policy, was not precluded (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; cf. Central Radiology Servs., P.C. v Commerce Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50948[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Accordingly, defendant’s motion for summary judgment dismissing the complaint was properly [*2]denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 23, 2012

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.

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's claims representative's affidavit, offered to show timely denial, was inadmissible under Real Property Law § 299-a (1), so the insurer failed to establish a timely denial and its misrepresentation defense was not shown unprecluded.

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.

Cited in this decision

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

Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc. (2011 NY Slip Op 00217) FollowedThe insurers' verification letters failed to toll the payment period, and their untimely denial precluded the residence-misrepresentation defense.
Central Radiology Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 50948(U))The insurer established that the assignor misrepresented the state of residence and was ineligible for no-fault benefits under the policy.

Similar decisions

A.B. Med., PLLC v GEICO (2013 NY Slip Op 50203(U))The provider failed to establish that the insurer's denials were untimely or without merit as a matter of law.
Boro Med. Supplies, Inc. v Country Wide Ins. Co. (2008 NY Slip Op 52698(U))The insurer's unsigned affidavit failed to prove a timely denial, precluding its defense that the provider submitted the claim late.
Bongiorno v State Farm Ins. Co. (2009 NY Slip Op 50860(U))The insurer's unrebutted IME report and claims affidavit established its entitlement to summary judgment for lack of medical necessity.
Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51621(U))The insurer failed to prove IME nonappearance through a person with personal knowledge, while the provider failed to establish its prima facie case.
Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.