June 15, 2011
Jesa Med. Supply, Inc. v Republic W. Ins. Co. (2011 NY Slip Op 51127(U))
https://www.beynensonlaw.com/case-law/jesa-med-supply-inc-v-republic-w-ins-co-2011-ny-slip-op-51127u/
- Decided
- June 15, 2011
- Citation
- 2011 NY Slip Op 51127(U) · 31 Misc 3d 151(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Jesa Med. Supply, Inc. v Republic W. Ins. Co. (2011 NY Slip Op 51127(U))
| Jesa Med. Supply, Inc. v Republic W. Ins. Co. |
| 2011 NY Slip Op 51127(U) [31 Misc 3d 151(A)] |
| Decided on June 15, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : GOLIA, J.P., PESCE and STEINHARDT, JJ
2009-918 K C.
against
Republic Western Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered December 9, 2008. The order granted plaintiff’s motion for summary judgment.
ORDERED that the order is reversed, without costs, and plaintiff’s motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits for supplies provided to plaintiff’s assignor, plaintiff moved for summary judgment. In opposition to the motion, defendant argued that plaintiff did not make out its prima facie case and that there was no coverage since the accident was staged. Finding that the examination-under-oath transcripts were insufficient to establish an issue of fact as to whether the injuries arose from an insured incident, the Civil Court granted plaintiff’s motion. This appeal by defendant ensued.
Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The affidavit also established that the claim was mailed to defendant, as the affiant averred that she had personally mailed the claim, and that defendant did not deny the claim within 30 days. Consequently, plaintiff established its prima facie entitlement to summary judgment (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]), and the burden shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Although defendant did not deny the claim at issue, it is well settled that the failure to deny a claim does not preclude an insurer from asserting a lack-of-coverage defense premised on the fact or founded belief that the alleged injury did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). The affidavit of defendant’s investigator is sufficient to demonstrate a founded belief that the alleged injuries did [*2]not arise out of an insured incident (see Central Gen. Hosp., 90 NY2d at 199). Thus, plaintiff’s motion for summary judgment should have been denied.
Accordingly, the order is reversed and plaintiff’s motion for summary judgment is denied.
Golia, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: June 15, 2011
Legal questions (3)
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 the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?
This decision: Founded belief shown; the question must be tried
Held the insurer's investigator affidavit sufficient to demonstrate a founded belief that the injuries did not arise from an insured incident, so the provider's summary judgment motion should have been denied.
Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 102 (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)
Rejected the insurer's challenge and held the billing manager's affidavit laid a CPLR 4518 foundation, showed she personally mailed the claim, and showed no denial within 30 days, establishing the provider's prima facie case.
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The provider's or claimant's proof established mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)
Held the provider's billing manager proved mailing of the claim because she averred that she personally mailed it to the insurer.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Similar decisions
- Jesa Med. Supply, Inc. v NYC Tr. Auth. (2013 NY Slip Op 52007(U))Denial forms offered only to identify the denials at issue, rather than prove the truth of their stated grounds, are not hearsay.
- Jesa Med. Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 50052(U))The provider's action was premature because requested verification remained outstanding and the insurer's time to pay or deny had not begun.
- Jesa Med. Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52290(U))The insurer's unrebutted peer review report established that the supplies lacked medical necessity.
- Amaze Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 52690(U))The insurer's submissions supported a founded belief that the alleged injuries did not arise out of an insured incident.
- A.B. Med. Servs., PLLC v Utica Mut. Ins. Co. (2008 NY Slip Op 51859(U))The insurer's investigators established a founded belief that the assignor's injuries did not arise from an insured incident.