December 22, 2017
Masigla v Country Wide Ins. Co. (2017 NY Slip Op 51888(U))
https://www.beynensonlaw.com/case-law/masigla-v-country-wide-ins-co-2017-ny-slip-op-51888u/
- Decided
- December 22, 2017
- Citation
- 2017 NY Slip Op 51888(U) · 58 Misc 3d 143(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 Masigla v Country Wide Ins. Co. (2017 NY Slip Op 51888(U))
| Masigla v Country Wide Ins. Co. |
| 2017 NY Slip Op 51888(U) [58 Misc 3d 143(A)] |
| Decided on December 22, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 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
2015-1528 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 (Terrence C. O’Connor, J.), entered April 29, 2015. 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 on the ground that defendant had not received timely notice of the accident.
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]). 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, 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.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 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 challenge and leaving dismissal on late notice of the accident intact.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
- 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
- Masigla v ELRAC, Inc. (2017 NY Slip Op 51868(U))The defendant's summary judgment dismissal of the third, fifth and seventh causes of action was upheld on a presumption of timely denial mailing.
- Masigla v Travelers Ins. Co. (2017 NY Slip Op 51794(U))The insurer's attorneys' affirmations established the provider's EUO nonappearance, and its proof established proper mailing of denials.
- Masigla v 21st Century Ins. Co. (2019 NY Slip Op 50938(U))The insurer failed to establish through admissible evidence that Florida law applied or that the policy limits were exhausted.
- 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.
- Healthway Med. Care, P.C. v Country Wide Ins. Co. (2015 NY Slip Op 51654(U))The insurer established late notice of the accident, and the provider offered no proof of timely notice or a reasonable justification.