October 28, 2011
Comfort Supply, Inc. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52018(U))
https://www.beynensonlaw.com/case-law/comfort-supply-inc-v-clarendon-natl-ins-co-2011-ny-slip-op52018u/
- Decided
- October 28, 2011
- Citation
- 2011 NY Slip Op 52018(U) · 33 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
- Legal questions
- 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 Comfort Supply, Inc. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52018(U))
| Comfort Supply, Inc. v Clarendon Natl. Ins. Co. |
| 2011 NY Slip Op 52018(U) [33 Misc 3d 135(A)] |
| Decided on October 28, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., WESTON and RIOS, JJ
2009-2463 K C.
against
Clarendon National Insurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 5, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its cross motion for summary judgment dismissing the complaint.
The affidavit of defendant’s claims division employee established that defendant had timely mailed its denial of claim form, which denied the claim on the ground that the assignor had not submitted proper notice of the accident to defendant within 30 days of the accident, in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The affidavit further stated that defendant had first learned of the accident when it had received an NF-2 form, thereby demonstrating that defendant first learned of the accident more than 30 days after it had occurred. As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff. In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident prior to receiving the NF-2 form. Despite being informed by the denial of claim form that it had the opportunity to “submit[] written proof providing clear and reasonable justification for the failure” to timely advise defendant of the accident (Insurance Department Regulation [11 NYCRR] § 65-1.1; § 65-2.4 [b]), plaintiff did not present any evidence that it had availed itself of the opportunity. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact.
Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted. [*2]
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 28, 2011
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Held the claims employee's affidavit established that the insurer timely mailed its late-notice denial in accordance with its standard office practices and procedures.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Cited by
A label shows how the later decision treated this one.
- Jamaica Med. Supply, Inc. v NY City Tr. Auth. (2012 NY Slip Op 51660(U)) FollowedThe transit authority established late accident notice, and the provider supplied neither contrary proof nor justification for the delay.
- Tam Med. Supply Corp. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 51352(U)) FollowedThe insurer established that it first learned of the accident through an NF-2 form submitted more than 30 days after the accident.
- Medical Careworks, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 51281(U))The insurer established late notice of the accident, and the provider offered neither contrary proof nor a reasonable justification.
- Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52365(U))The insurer established that it received no written accident notice, and the provider showed neither timely notice nor reasonable justification.
Similar decisions
- Ukon Med. Care, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 52176(U))The insurer established that accident notice was late, and the provider offered neither contrary proof nor justification for the delay.
- Dynasty Med. Care, P.C. v 21st Century Sec. Ins. Co. (2018 NY Slip Op 51550(U))The insurer established late accident notice through an NF-2 received more than 30 days after the accident and timely denials on that ground.
- Healthway Med. Care, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51654(U))The insurer established late notice of the accident, and the provider offered no proof of timely notice or a reasonable justification.
- DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51304(U))A no-fault claim accrues 30 days after the insurer receives it; a later denial does not postpone accrual.
- Comfort Supply, Inc. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 52289(U))A peer review report is not inadmissible merely because the insurer omits the underlying medical records considered by the reviewer.