June 28, 2011

Mount Sinai Hosp. v Country Wide Ins. Co. (2011 NY Slip Op 05680)

https://www.beynensonlaw.com/case-law/mount-sinai-hosp-v-country-wide-ins-co-2011-ny-slip-op-05680/

Court: Appellate Division, Second Department
Decided: June 28, 2011
Citation: 2011 NY Slip Op 05680 · 85 AD3d 1136
Posture: Summary judgment
Outcome: Split result
Issues: Policy issues Provider's prima facie case Interest and attorney fees
Legal questions: Exhaustion of policy limits · Claimant's prima facie case on motions (see the maps)

Cite as

Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136 (2d Dept 2011)

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 raised factual issues about policy exhaustion during a verification toll and payment with overdue interest before suit. The providers established a prima facie case by showing receipt of bills and failure to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The Appellate Division, Second Department, modified the order to deny the providers' motion and affirmed denial of the insurer's cross motion. One claim presented a dispute over exhaustion through payment for prior services; the other concerned payment with interest before commencement. Renewal of the insurer's cross motion was denied under CPLR 2221 (e) (3) for lack of reasonable justification for withholding new facts; renewal of its opposition became academic.

Reported in New York Official Reports at Mount Sinai Hosp. v Country Wide Ins. Co. (2011 NY Slip Op 05680)

Mount Sinai Hosp. v Country Wide Ins. Co.

2011 NY Slip Op 05680 [85 AD3d 1136]

June 28, 2011

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, August 10, 2011

Mount Sinai Hospital, as Assignee of Vanessa Ayala et al., Respondents,
v
Country Wide Insurance Company, Appellant.

—[*1] Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondents.

In an action to recover no-fault medical payments under two insurance policies, the defendant appeals (1) from an order of the Supreme Court, Nassau County (Winslow, J.), entered July 19, 2010, which granted the plaintiffs’ motion for summary judgment on the complaint and denied its cross motion for summary judgment, in effect, dismissing the complaint, and (2) as limited by its brief, from so much of an order of the same court entered February 7, 2011, as denied those branches of its motion which were for leave to renew its cross motion for summary judgment, in effect, dismissing the complaint and its opposition to the plaintiffs’ motion for summary judgment on the complaint.

Ordered that the order entered July 19, 2010, is modified, on the law, by deleting the provision thereof granting the plaintiffs’ motion for summary judgment on the complaint, and substituting therefor a provision denying the plaintiffs’ motion; as so modified, the order entered July 19, 2010, is affirmed, without costs or disbursements; and it is further,

Ordered that the appeal from so much of the order entered February 7, 2011, as denied that branch of the defendant’s motion which was for leave to renew its opposition to the plaintiffs’ motion for summary judgment is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order entered July 19, 2010; and it is further,

Ordered that the order entered February 7, 2011, is affirmed insofar as reviewed, without costs or disbursements.

The plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on their causes of action to recover no-fault insurance medical payments by submitting evidence that the necessary billing documents had been mailed and received by the defendant insurer, which failed to either pay or deny the claims within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604 [2011]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]). However, in opposition, the defendant raised triable issues of fact with respect to whether the limits [*2]of the policy at issue in the first cause of action were exhausted through the payment of claims for prior services during a time that the 30-day period was tolled pursuant to the defendant’s request for additional verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [a] [1]; 65-3.15; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832, 833 [2009]; Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771, 771-772 [2006]), and whether the claim at issue in the second cause of action was paid by the defendant, with appropriate overdue interest, prior to the commencement of this action (see Insurance Law § 5106 [a]). Accordingly, the Supreme Court should have denied the plaintiffs’ motion for summary judgment on the complaint. Because of the aforementioned issues of fact, the Supreme Court properly denied the defendant’s cross motion for summary judgment, in effect, dismissing the complaint.

The Supreme Court also properly denied that branch of the defendant’s motion which was for leave to renew its cross motion for summary judgment, in effect, dismissing the complaint, as the defendant failed to offer a reasonable justification for its failure to submit the new facts at the time of the prior motion (see CPLR 2221 [e] [3]; Matter of Leone Props., LLC v Board of Assessors for Town of Cornwall, 81 AD3d 649, 652 [2011]; Greene v New York City Hous. Auth., 283 AD2d 458, 459 [2001]). Prudenti, P.J., Eng, Hall and Lott, JJ., concur.

Legal questions (2)

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.

Exhaustion of policy limits

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Did the insurer prove the policy’s no-fault limits were properly exhausted before it became obligated to pay the claim?

This decision: Exhaustion cannot be decided on this record: issue of fact, framed-issue hearing, or remittal to decide the defense

Held the insurer raised triable issues of fact whether the policy limits were exhausted by paying claims for prior services while its 30-day period on this claim was tolled by a pending verification request, defeating the hospital's summary judgment.

Limits exhaustedCoverage left when dueExhaustion not provedTriable issue / hearingDefense not heardThis decisionCites it or cited by itCited or followed

Of the 68 decisions on this question in the Second Department courts and the Court of Appeals, 9 (this one included) are in the same category.

Claimant's prima facie case on motions

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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)

Held the plaintiffs made their prima facie showing by proof that the billing documents were mailed to and received by the insurer and not paid or denied within 30 days, but denied their motion because the insurer raised triable issues.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

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.

Cited in this decision

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

Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc. (2011 NY Slip Op 00217)The insurers' verification letters failed to toll the payment period, and their untimely denial precluded the residence-misrepresentation defense.
Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2008 NY Slip Op 04867)An insurer invoking the intoxication exclusion must establish that intoxication proximately caused the accident to obtain summary judgment.
Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946) FollowedAn insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.
Westchester Med. Ctr. v Hartford Cas. Ins. Co. (2009 NY Slip Op 00528) FollowedThe insurers showed an excusable default and a potentially meritorious defense based on partial exhaustion of policy limits.
Montefiore Med. Ctr. v Government Empls. Ins. Co. (2006 NY Slip Op 08953) FollowedAn insurer's additional verification request following an N-F5 submission need not use a prescribed form to toll the payment deadline.

Cited by

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430)A provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Westchester Med. Ctr. v Hereford Ins. Co. (2012 NY Slip Op 04156)The provider proved mailing and receipt of its bill and the insurer's failure to pay or deny within 30 days; the insurer failed to raise a triable issue.
Westchester Med. Ctr. v Lancer Ins. Co. (2012 NY Slip Op 02867)The insurer defeated the provider's summary judgment motion by proving timely verification requests and denial after verification was received.
New York Univ. Hosp.-Tisch Inst. v Government Empls. Ins. Co. (2014 NY Slip Op 03812)The insurer raised a factual issue as to whether verification requests tolled the deadline and its denial was timely.
Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 01166)An insurer's denial need not include a peer review report or other medical evidence when issued under 11 NYCRR 65-3.8.
Westchester Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 00500)The insurer's contention that a complete absence of coverage survived its untimely denial was improperly raised for the first time on appeal.

Similar decisions

NYU Hosp. for Joint Diseases v Country Wide Ins. Co. (2011 NY Slip Op 04219)The insurer's denial was fatally defective because it omitted required information and named the assignor as the benefits applicant.
New York & Presbyt. Hosp. v Countrywide Ins. Co. (2007 NY Slip Op 07675)The insurer raised verification and billing-date issues on one claim, but failed to rebut proof of receipt of verification on another.
Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2011 NY Slip Op 08747)The insurer's timely denial defeated summary judgment on the provider's first cause of action alleging failure to pay or deny.
Westchester Med. Ctr. v Countrywide Ins. Co. (2007 NY Slip Op 09024)The insurer failed to prove mailing of verification requests and waived defenses based on incomplete assignment forms.
St. Barnabas Hosp. v Country Wide Ins. Co. (2010 NY Slip Op 09121)The insurer was not collaterally estopped from seeking a judgment reduction based on partially exhausted policy limits.