August 20, 2014
Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. (2014 NY Slip Op 51322(U))
https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-national-liab-fire-ins-co-2014-nyslip-op-51322u/
- Decided
- August 20, 2014
- Citation
- 2014 NY Slip Op 51322(U) · 44 Misc 3d 142(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 1 later decision (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 Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. (2014 NY Slip Op 51322(U))
| Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. |
| 2014 NY Slip Op 51322(U) [44 Misc 3d 142(A)] |
| Decided on August 20, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-653 K C
against
National Liability & Fire Insurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered November 20, 2012. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary
judgment dismissing the complaint on the ground that plaintiff’s assignor had obtained the insurance policy in question through fraud. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion.
Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto.
The papers submitted by defendant were sufficient to establish that defendant had timely mailed (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]) its denial of claim form, which denied the claim on the ground of the fraudulent procurement of the insurance policy in question by virtue of the assignor’s misrepresentation of his place of residence. Furthermore, defendant’s papers demonstrated that a triable issue of fact exists as to whether plaintiff’s assignor had provided a fraudulent address when he had obtained the insurance policy at issue. Consequently, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
With respect to defendant’s cross motion, upon the record before us, we find that defendant failed to make a prima facie showing of its entitlement to judgment dismissing the complaint as a matter of law.
Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 20, 2014
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 insurer's papers established timely mailing of its fraudulent-procurement denial, which with a triable fraud issue required denial of the provider's summary judgment motion.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.
Cited in this decision
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The 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)An 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.
- Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50254(U)) FollowedThe insurer raised a factual issue over fraudulent policy procurement but failed to establish material misrepresentation as a matter of law.
Similar decisions
- Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U))The insurer's examiner affidavit established that it had not issued a policy covering the accident.
- Delta Diagnostic Radiology, P.C. v Maya Assur. Co. (2015 NY Slip Op 50786(U))The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish its prima facie case.
- Delta Diagnostic Radiology, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51676(U))The insurer failed to prove EUO or IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment.
- Delta Diagnostic Radiology, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51672(U))The insurer established timely mailing of IME notices and denials and the assignor's failure to appear for scheduled IMEs. In the provider's action for assigned no-fault benefits, the insurer proved that the scheduling letters and denial forms had been timely mailed and that the assignor had not attended the duly scheduled IMEs. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the nonappearances constituted failure to comply with a condition precedent to coverage.
- Delta Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51953(U))An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy.