July 25, 2008
Boro Med. Supplies, Inc. v Country Wide Ins. Co. (2008 NY Slip Op 52698(U))
https://www.beynensonlaw.com/case-law/boro-med-supplies-inc-v-country-wide-ins-co-2008-ny-slip-op52698u/
- Decided
- July 25, 2008
- Citation
- 2008 NY Slip Op 52698(U) · 25 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- Proof of mailing · Claimant's prima facie case on motions (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 Boro Med. Supplies, Inc. v Country Wide Ins. Co. (2008 NY Slip Op 52698(U))
| Boro Med. Supplies, Inc. v Country Wide Ins. Co. |
| 2008 NY Slip Op 52698(U) [25 Misc 3d 132(A)] |
| Decided on July 25, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., and RIOS, J.
2007-166 Q C
against
Country Wide Insurance Company, Respondent. DECISION
Motion by appellant for leave to appeal to the Appellate Division from the order of this court dated February 8, 2008 denied as academic.
On the court’s own motion, reargument of the order and decision of this court in the above-entitled action, dated February 8, 2008, is granted and, upon reargument, the order and decision of this court dated February 8, 2008 are vacated and the following is substituted as the decision of the court:
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated October 17, 2006. The order denied plaintiff’s motion for summary judgment.
Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved
for summary judgment. Defendant opposed plaintiff’s motion, asserting,
inter alia, that the affidavits submitted by plaintiff were insufficient to support plaintiff’s
motion for summary judgment and that plaintiff failed to submit a timely claim for
reimbursement of benefits. The court denied plaintiff’s motion for summary judgment, holding
that defendant raised triable issues of fact as to the denial of the claim and as to whether plaintiff
timely mailed the bills to defendant. This appeal by plaintiff ensued.
Plaintiff established its prima facie entitlement to summary judgment by proof that it [*2]submitted the claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
The affidavit’ of defendant’s no-fault supervisor, submitted by defendant to establish that defendant timely denied plaintiff’s claim, was not signed. Thus, the affidavit’ is of no probative value and defendant failed to establish that it timely denied plaintiff’s claim within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]). As a result, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its proffered defense that the claim was submitted more than 45 days after the date of service.
Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Pesce, P.J., and Rios, J., concur.
Decision Date: July 25, 2008
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 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 unsigned supervisor affidavit had no probative value, so it failed to prove timely denial within 30 days and was precluded from its 45-day defense.
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.
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 provider established its prima facie case by proof that it submitted the claim form and that payment was overdue, shifting the burden to the insurer.
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
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359) FollowedThe hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Mani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U))The insurer's accident-reconstruction evidence raised a triable issue whether the assignor's injuries arose from the insured accident.
Similar decisions
- All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50307(U))The insurer failed to prove timely mailing of IME scheduling letters and therefore failed to establish tolling of its claim deadline.
- Bath Med. Supply, Inc. v Country Wide Ins. Co. (2009 NY Slip Op 51145(U))The insurer established verification tolling and timely denials, and its peer review raised a factual issue concerning medical necessity.
- New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co. (2012 NY Slip Op 50681(U))Timeliness under the 45-day claim-submission requirement turns on the provider's submission date, rather than the insurer's receipt date.
- Metropolitan Med. Supplies, LLC v Eveready Ins. Co. (2009 NY Slip Op 50586(U))The insurer's supervisor affidavit and affirmed peer review established a timely medical-necessity denial sufficient to defeat summary judgment.
- Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co. (2004 NY Slip Op 51041(U))The insurer's EUO request and nonspecific investigation letters did not toll the 30-day period for paying or denying the provider's claim.