March 2, 2006

Fair Price Med. Supply Corp. v ELRAC Inc. (2006 NY Slip Op 50862(U))

https://www.beynensonlaw.com/case-law/fair-price-med-supply-corp-v-elrac-inc-2006-ny-slip-op-50862u/

Court
Appellate Term, Second Department
Decided
March 2, 2006
Citation
2006 NY Slip Op 50862(U)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Provider's prima facie case Staged accidents, lack of coverage Verification requests
Legal questions
Claimant's prima facie case on motions · No covered accident (founded belief) (see the maps)
Cite as
Fair Price Med. Supply Corp. v ELRAC Inc., 2006 NY Slip Op 50862(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2006)

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 provider failed to show two claims were overdue, and a founded belief of noncovered injuries raised a coverage issue on the third. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion on all three medical-supply claims. The defendants acknowledged receipt of two claims without specifying receipt dates, leaving the provider's prima facie proof deficient. Delay letters and a denial form established receipt of the third claim, but investigation letters did not toll the 30-day determination period. Although an untimely denial precluded other defenses to that claim, evidence of an alleged fraudulent scheme in the accident's occurrence raised a triable coverage issue that survived preclusion.

Reported in New York Official Reports at Fair Price Med. Supply Corp. v ELRAC Inc. (2006 NY Slip Op 50862(U))

[*1]
Fair Price Med. Supply Corp. v ELRAC Inc.
2006 NYSlipOp 50862(U)
Decided on March 2, 2006
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2006
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-707 K C.

Fair Price Medical Supply Corp. aao Mario Blake, Appellant,

against

ELRAC Inc. & Enterprise Rent-A-Car, Respondents.


Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered March 22, 2005. The order, insofar as appealed from as limited by plaintiff’s brief, denied plaintiff’s motion for summary judgment.


Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover $2,539.30 in first-party no-fault benefits for medical supplies furnished to its assignor. Thereafter, plaintiff moved for summary judgment. In an order entered March 22, 2005, insofar as appealed from, the court below denied plaintiff’s motion.

The plaintiff’s moving papers were deficient concerning proof of its submission of its three claim forms to defendants. Such deficiency was cured, however, only as to the $835.45 claim by defendants’ annexation to their opposition papers of the delay letters which specifically state that defendants received the $835.45 claim as early as August 2003 (see e.g. A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]), and the denial of claim form, dated June 2004, which specifically states that defendants received the $835.45 claim in August 2003. Since defendants merely acknowledged receipt of the claims for $680.85 and $1,023 without specifying any date therefor, as to same, plaintiff failed to make out a prima facie case that payment was overdue.

Contrary to defendants’ contention, the letters they allegedly sent to plaintiff informing it that its $835.45 claim was being investigated, do not constitute proper requests for verification [*2]and, therefore, did not toll the 30-day claim determination period as to said claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]; Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co., 4 Misc 3d 142[A], 2004 NY Slip Op 51041[U] [App Term, 2d & 11th Jud Dists]). Having failed to timely pay or deny the $835.45 claim, defendants are precluded from raising most defenses with respect thereto (see Presbyterian Hosp. in
City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, supra).
Defendants, however, also asserted that “there was a fraudulent scheme in the happening of the accident,” a defense which survives preclusion (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that defendants’ papers sufficiently demonstrate defendants’ “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Consequently, defendants demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), and, thus, the court below also properly denied plaintiff’s motion for summary judgment as to the $835.45 claim.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: March 2, 2006

Similar decisions