December 11, 2012

Magenta Med. P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 52236(U))

https://www.beynensonlaw.com/case-law/magenta-med-p-c-v-clarendon-natl-ins-co-2012-ny-slip-op52236u/

Court: Appellate Term, First Department
Decided: December 11, 2012
Citation: 2012 NY Slip Op 52236(U) · 37 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Magenta Med. P.C. v Clarendon Natl. Ins. Co., 37 Misc 3d 139(A), 2012 NY Slip Op 52236(U) (App Term, 1st Dept 2012)

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 raise a factual issue as to timely submission of its no-fault claim or reasonable justification for its delay. The insurer established entitlement to summary judgment under 11 NYCRR 65-1.1 and 65-3.3 (d) and (e). The provider's employee lacked personal knowledge of mailing and described office mailing procedures only generally. A certified mail receipt bearing two different postmarks and a file number unrelated to the claim did not establish actual mailing. The provider also offered no proof of reasonable justification for untimely notice. The Appellate Term, First Department, reversed the order, granted the insurer's motion, and dismissed the complaint.

Reported in New York Official Reports at Magenta Med. P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 52236(U))

[*1]

Magenta Med. P.C. v Clarendon Natl. Ins. Co.

2012 NY Slip Op 52236(U) [37 Misc 3d 139(A)]

Decided on December 11, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570863/12.

Magenta Medical P.C., a/a/o Sandis A. Taveras, Plaintiff-Respondent, – –
against
Clarendon National Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 17, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 17, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In opposition to defendant’s prima facie showing of entitlement to judgment as a matter of law on the ground that plaintiff did not submit timely proof of its claim for first-party no-fault benefits (see 11 NYCRR 65—1.1; 65—3.3[d],[e]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592 [2011]), plaintiff failed to raise a triable issue of fact. The conclusory affidavit of plaintiff’s employee, who had no personal knowledge of the date the claim was mailed, and described in only the most general terms her offices mailing practices and procedures, was insufficient to raise an issue of fact (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 677 [2007]). Nor did the certified mail receipt relied upon by plaintiff raise a triable issue as to actual mailing (see Mid City Construction Co., Inc. v Sirius America Insurance Company, 70 AD3d 789, 790 [2010]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]), especially given that the receipt contained two different postmarks and a file number that did not correspond to plaintiff’s claim. We also note that plaintiff submitted no proof of “reasonable justification” for the failure to provide timely notice of the claim (see 11 NYCRR 65-3.3[e]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d at 592).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: December 11, 2012

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 provider's or claimant's proof did not establish mailing of its claim form, NF-2 or verification response

Held the provider failed to raise a triable issue on timely claim submission because its employee lacked personal knowledge of the mailing date and described office practice only generally, and the certified-mail receipt bore two postmarks and a non-matching file number.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 161 decisions on this question in the First Department courts and the Court of Appeals, 9 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

New York & Presbyt. Hosp. v Country-Wide Ins. Co. (2011 NY Slip Op 07149) FollowedA timely proof of claim does not satisfy the 30-day accident-notice requirement when submitted after that period expires.
Westchester Med. Ctr. v Countrywide Ins. Co. (2007 NY Slip Op 09024) FollowedThe insurer failed to prove mailing of verification requests and waived defenses based on incomplete assignment forms.
New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.

Similar decisions

Ukon Med. Care, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 52176(U))The insurer established that accident notice was late, and the provider offered neither contrary proof nor justification for the delay.
Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51351(U))The insurer established payment of one claim, untimely submission of three claims, and lack of medical necessity for the remaining services.
Medical Careworks, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 51281(U))The insurer established late notice of the accident, and the provider offered neither contrary proof nor a reasonable justification.
Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52365(U))The insurer established that it received no written accident notice, and the provider showed neither timely notice nor reasonable justification.
Compas Med., P.C. v ELRAC, Inc. (2016 NY Slip Op 51497(U))The defendant established untimely accident notice, timely denials, and the absence of a reasonable justification for the delay.