November 21, 2005

Nyack Hosp. v Encompass Ins. Co. (2005 NY Slip Op 08962)

https://www.beynensonlaw.com/case-law/nyack-hosp-v-encompass-ins-co-2005-ny-slip-op-08962/

Court: Appellate Division, Second Department
Decided: November 21, 2005
Citation: 2005 NY Slip Op 08962 · 23 AD3d 535
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Distinguished in 1 and followed in 15 later decisions (see Cited by)
Issues: Timeliness and preclusion Interest and attorney fees Assignments and standing
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 (2d Dept 2005)

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.

An insurer's letters delaying payment pending its investigation do not toll the 30-day period for paying or denying a no-fault claim. The hospital proved that billing forms were mailed and received and that payment was overdue. The insurer waived objections to the assignment by failing to timely object or seek verification. Under 11 NYCRR 65.15 (d) (6), it also could not await a separate no-fault application instead of accepting the completed hospital facility form. The Appellate Division, Second Department, reversed, granted the hospital summary judgment for statutory interest and attorney fees, denied the insurer's cross motion, reinstated the complaint, and remitted to calculate the amount due.

Reported in New York Official Reports at Nyack Hosp. v Encompass Ins. Co. (2005 NY Slip Op 08962)

Nyack Hosp. v Encompass Ins. Co.

2005 NY Slip Op 08962 [23 AD3d 535]

November 21, 2005

Appellate Division, Second Department

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

As corrected through Monday, April, 3, 2006

Nyack Hospital, as Assignee of Stacey Gersten, Appellant,
v
Encompass Insurance Company, Respondent.

—[*1]

In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated March 30, 2005, which denied its motion for summary judgment on its claim for statutory interest and an award of an attorney’s fee, and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

The plaintiff, Nyack Hospital (hereinafter the hospital), as assignee of Stacey Gersten, made a prima facie showing of entitlement to judgment as a matter of law on its claim for statutory interest and an attorney’s fee, by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue when made (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005], lv denied 5 NY3d 713 [2005]).

The defendant, Encompass Insurance Company (hereinafter the insurance company), waived any defense based on the lack of a valid assignment by the claimant to the hospital, by failing to timely object to the completeness of the forms or seek verification of the assignment (see Hospital [*2]for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., supra; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699 [2001]). Moreover, the two letters from the insurance company to the hospital, dated May 28, 2004, and June 23, 2004, respectively, stating that the claimant’s hospital records had been received but that payment was delayed pending completion of the insurance company’s investigation, did not toll the 30-day statutory period for paying or denying the claim (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]; Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314 [U] [2005]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [2004]).

We reject the insurance company’s argument that it was entitled to delay payment while awaiting a no-fault application to be submitted, as 11 NYCRR 65.15 (d) (6) specifically states that “[i]n lieu of a prescribed application for motor vehicle no-fault benefits submitted by an applicant and a verification of hospital treatment (NYS Form N-F 4), an insurer shall accept a completed hospital facility form (NYS Form N-F 5) . . . submitted by a provider of health services with respect to the claim of such provider” (emphasis added).

Therefore, since the hospital established that the insurance company’s payment of the no-fault billing was overdue, and the insurance company did not raise a triable issue of fact, the hospital was entitled to summary judgment on its claim for statutory interest and an attorney’s fee. Accordingly, we remit the matter to the Supreme Court, Nassau County, to calculate the amount due the hospital. H. Miller, J.P., Luciano, Fisher and Covello, JJ., concur.

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.

Claimant's prima facie case on motions

Open the full map

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 hospital made its prima facie showing on interest and fees by proof that the statutory billing forms were mailed and received and that payment was overdue when made.

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

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

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

Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235) FollowedThe insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
Hospital for Joint Diseases v Allstate Ins. Co. (2005 NY Slip Op 06192) FollowedAn insurer waived assignment objections by failing to timely object to hospital forms or seek verification of the assignments.
Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221) FollowedEUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.

Cited by (32)

A label shows how the later decision treated this one.

Elite Med. Care, P.C. v Travelers Prop. & Cas. Ins. Co. (2006 NY Slip Op 51397(U)) DistinguishedA provider must prove a properly executed assignment at trial to recover assigned no-fault benefits.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2006 NY Slip Op 08214) FollowedAn insurer waives claim-form and assignment defenses by failing to timely object to form adequacy or seek assignment verification.
Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co. (2012 NY Slip Op 51649(U)) FollowedAn insurer's delay letters requesting no verification do not toll the 30-day period to pay or deny a no-fault claim.
Natural Acupuncture Health, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 50040(U)) FollowedThe insurer proved a fee-schedule defense to one provider's claims but failed to establish timely denial of another provider's claim.
Nyack Hosp. v Allstate Ins. Co. (2006 NY Slip Op 52233(U)) FollowedThe insurer lacked a meritorious defense to vacate its default because a completed hospital facility form replaced the requested no-fault application.
A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U)) FollowedThe insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
Compas Med., P.C. v ELRAC, Inc. (2015 NY Slip Op 50675(U)) FollowedThe provider was denied summary judgment because factual issues remained over denial timeliness and whether services were rendered.
Dilon Med. Supply Corp. v State Farm Mut. Ins. Co. (2006 NY Slip Op 51344(U)) FollowedAn insurer's fraud defense based on excessive billing or lack of medical necessity is subject to the 30-day denial preclusion rule.
Hillside OpenMRI, P.C. v Allstate Ins. Co. (2014 NY Slip Op 51143(U)) FollowedAn insurer's delay letters requesting no verification do not toll the 30-day period to pay or deny a no-fault claim.

Show all 32 citing decisions

Similar decisions

New York & Presbyt. Hosp. v Selective Ins. Co. of Am. (2007 NY Slip Op 06848)The insurer's conclusory medical affidavit failed to raise a factual issue that the treated condition was unrelated to the automobile accident.
New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 05626)The insurer failed to establish mailing of assignment-verification requests and could not defeat the hospitals' summary judgment motion.
New York & Presbyterian Hospital v Allstate Insurance Company (2006 NY Slip Op 04815)An insurer liable for overdue no-fault benefits must pay 2% monthly interest from 30 days after claim presentation until payment.
New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co. (2006 NY Slip Op 06223)The insurers were precluded from contesting a hospital claim because they failed to establish that their denial letter met regulatory requirements.
Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484)An insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.