September 8, 2017
Laga v Country Wide Ins. Co. (2017 NY Slip Op 51155(U))
https://www.beynensonlaw.com/case-law/laga-v-country-wide-ins-co-2017-ny-slip-op-51155u/
- Decided
- September 8, 2017
- Citation
- 2017 NY Slip Op 51155(U) · 57 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- 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 Laga v Country Wide Ins. Co. (2017 NY Slip Op 51155(U))
| Laga v Country Wide Ins. Co. |
| 2017 NY Slip Op 51155(U) [57 Misc 3d 128(A)] |
| Decided on September 8, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1960 Q C
against
Country Wide Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 31, 2014. 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 argument, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff’s remaining argument with respect to defendant’s cross motion is not properly before this court, as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, [*2]Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
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
Held the insurer's proof sufficient to raise a presumption that the denials were properly mailed, rejecting the provider's preserved challenge and upholding dismissal.
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
- 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.
- Mind & Body Acupuncture, P.C. v Elrac, Inc. (2015 NY Slip Op 51219(U))The insurer established full fee-schedule payment, and the provider's challenge to the IME letters' address was unpreserved.
Similar decisions
- Laga v Allstate Ins. Co. (2018 NY Slip Op 50416(U))The insurer failed to establish timely mailing of its denials and therefore did not show that its defenses escaped preclusion.
- Laga v American Commerce Ins. Co. (2017 NY Slip Op 51250(U))The insurer failed to establish a timely denial of the sixth claim on its EUO nonappearance defense.
- Laga v Lancer Ins. Co. (2017 NY Slip Op 51244(U))The insurer's summary judgment dismissing the complaint for the provider's EUO nonappearance was affirmed.
- Adelaida M. Laga, Pt v 21st Century Ins. Co. (2016 NY Slip Op 51623(U))The insurer's summary judgment motion dismissing the first four causes of action was granted based on timely mailed denials.
- Masigla v Country Wide Ins. Co. (2017 NY Slip Op 51888(U))The insurer's proof raised a presumption of proper mailing of the denials supporting its late-accident-notice defense.