November 6, 2020

Lacina v Hereford Ins. Co. (2020 NY Slip Op 51333(U))

https://www.beynensonlaw.com/case-law/lacina-v-hereford-ins-co-2020-ny-slip-op-51333u/

Court: Appellate Term, Second Department
Decided: November 6, 2020
Citation: 2020 NY Slip Op 51333(U) · 69 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Lacina v Hereford Ins. Co., 69 Misc 3d 139(A), 2020 NY Slip Op 51333(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 insurer's supervisor and mailing officer affidavits established proper mailing of the denial of claim forms. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion dismissing the complaint. Applying St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., it rejected the provider's mailing challenge based on the no-fault supervisor's affidavit and the mailing officer's contemporaneous affidavits.

Reported in New York Official Reports at Lacina v Hereford Ins. Co. (2020 NY Slip Op 51333(U))

[*1]

Lacina v Hereford Ins. Co.

2020 NY Slip Op 51333(U) [69 Misc 3d 139(A)]

Decided on November 6, 2020

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 6, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2040 K C

Francis J. Lacina, M.D., as Assignee of Henry, Akilah, Appellant,
against
Hereford Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Goldberg, Miller & Rubin, P.C. (Timothy Bishop of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered August 10, 2018. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention on appeal, the affidavit executed by defendant’s no-fault supervisor and the contemporaneous affidavits executed by defendant’s mailing officer were sufficient to establish the proper mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020

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.

Proof of mailing

Open the full map

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

Held the no-fault supervisor's affidavit and the mailing officer's contemporaneous affidavits sufficient to establish proper mailing of the denial of claim forms.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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.

Similar decisions

Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co. (2020 NY Slip Op 51379(U))A lack-of-coverage defense is not precluded by defects in, or untimeliness of, an insurer's denial of claim.
JFL Med. Care, P.C. v Lancer Ins. Co. (2022 NY Slip Op 50056(U))The insurer's summary judgment motion was granted based on established mailing of IME scheduling letters to the assignor.
Laga v Country Wide Ins. Co. (2017 NY Slip Op 51155(U))The insurer's proof supported a presumption of proper denial mailing, and the provider's remaining challenge was first raised on appeal.
Lida’s Med. Supply, Inc. v Hereford Ins. Co. (2019 NY Slip Op 51356(U))The provider failed to establish entitlement to payment, and the insurer failed to establish timely mailing of its follow-up IME letter.
PFJ Med. Care, P.C. v Hereford Ins. Co. (2021 NY Slip Op 50637(U))The insurer's summary judgment motion asserting that it had issued no automobile policy covering the accident was granted on appeal.