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November 5, 2008

Nyack Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52184(U))

https://www.beynensonlaw.com/case-law/nyack-hosp-v-new-york-cent-mut-fire-ins-co-2008-ny-slip-op52184u/

Court
Appellate Term, Second Department
Decided
November 5, 2008
Citation
2008 NY Slip Op 52184(U) · 21 Misc 3d 133(A)
Posture
Summary judgment
Outcome
Provider prevailed
Later treatment
Followed in 3 later decisions (see Cited by)
Issues
Verification requests Timeliness and preclusion
Legal questions
Outstanding verification and premature actions · Challenging the assignment of benefits (see the maps)
Cite as
Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133(A), 2008 NY Slip Op 52184(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2008)

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 must accept a completed hospital facility form in place of an application for motor vehicle no-fault benefits. The insurer sought dismissal as premature, asserting that an application and completed assignment remained outstanding despite receipt of the hospital's NF-5 form. Under 11 NYCRR 65-3.5 (g), that completed form satisfied the application requirement. The insurer received the form, including an assignment, on October 6, 2005, but did not request assignment verification until December 23, 2005, failing to establish a timely request or entitlement to that verification. The Appellate Term, Second Department, affirmed summary judgment for the hospital and denial of the insurer's cross motion. Its business-record foundation challenge was unpreserved because first raised on appeal.

Reported in New York Official Reports at Nyack Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52184(U))

[*1]
Nyack Hosp. v New York Cent. Mut. Fire Ins. Co.
2008 NY Slip Op 52184(U) [21 Misc 3d 133(A)]
Decided on November 5, 2008
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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2007-816 N C.
The Nyack Hospital a/a/o GERALD HUTCHINSON, Respondent,

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated March 1, 2007. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. The court below granted plaintiff’s motion and denied defendant’s cross motion. The instant appeal by defendant ensued.

On appeal, defendant contends that the affidavit by the biller employed by a third party, submitted in support of plaintiff’s motion, failed to lay a proper foundation for the documents annexed to the moving papers and that, as a result, plaintiff failed to establish a prima facie case (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). We decline to consider this argument since it is raised for the first time on appeal and is therefore unpreserved (cf. Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, we do not pass upon the propriety of the determination of [*2]the court below with respect to plaintiff’s establishment of its prima facie case.

In opposition to plaintiff’s motion and in support of its cross motion seeking summary judgment dismissing the complaint as premature on the ground that plaintiff had failed to respond to its verification requests (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]), defendant argued that notwithstanding the fact that it had received plaintiff’s hospital facility form (NYS Form NF-5), verification was still outstanding because it had received neither an application for motor vehicle no-fault benefits nor a completed assignment of benefits form. Contrary to defendant’s contention, an insurer must accept a completed hospital facility form submitted by a provider of health services in lieu of a prescribed application for motor vehicle no-fault benefits (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [g]; see also Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2005]; Nyack Hosp. v Allstate Ins. Co., 13 Misc 3d 139[A], 2006 NY Slip Op 52233[U] [App Term, 9th & 10th Jud Dists 2006]). Moreover, defendant admitted having received the hospital facility form (which included an assignment) on October 6, 2005, and did not request verification of the assignment until December 23, 2005. Accordingly, defendant failed to establish that it timely requested verification with respect to the assignment (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007], supra), and consequently failed to demonstrate its entitlement to verification of the assignment (id.).

Since defendant failed to raise a triable issue of fact in opposition to plaintiff’s motion for summary judgment and failed to set forth a prima facie case with respect to its cross motion for summary judgment, the court below properly granted plaintiff’s motion and denied defendant’s cross motion. The order is therefore affirmed.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 05, 2008

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.

Outstanding verification and premature actions

Open the full map

Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Defense rejected because the insurer's requests or proof were deficient

Rejected the prematurity defense because the insurer had to accept the hospital facility form in lieu of an application and requested verification of the assignment untimely, so it was not entitled to that verification.

  • Appellate DivisionApp Div 31
  • Appellate TermApp Term 285
  • Trial courtsTrial 69
2014, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2013, Appellate Division: 2 decisions (2 Insurer's showing fails)2011, Appellate Division: 5 decisions (3 Premature: verification outstanding, 1 Triable issue, 1 Provider complied)2009, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Insurer's showing fails)2008, Appellate Division: 2 decisions (2 Triable issue)2007, Appellate Division: 6 decisions (3 Premature: verification outstanding, 1 Triable issue, 1 Insurer's showing fails, 1 Provider complied)2006, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2005, Appellate Division: 4 decisions (2 Premature: verification outstanding, 1 Triable issue, 1 Provider complied)2004, Appellate Division: 5 decisions (1 Premature: verification outstanding, 1 Nonresponse denial upheld, 1 Triable issue, 2 Insurer's showing fails)2026, Appellate Division: 1 decision (1 Nonresponse denial upheld)2023, Appellate Term: 2 decisions (2 Nonresponse denial upheld)2022, Appellate Term: 14 decisions (6 Premature: verification outstanding, 1 Nonresponse denial upheld, 4 Triable issue, 3 Insurer's showing fails)2021, Appellate Term: 4 decisions (3 Premature: verification outstanding, 1 Triable issue)2020, Appellate Term: 5 decisions (1 Premature: verification outstanding, 3 Triable issue, 1 Insurer's showing fails)2019, Appellate Term: 26 decisions (11 Premature: verification outstanding, 3 Nonresponse denial upheld, 10 Triable issue, 2 Insurer's showing fails)2018, Appellate Term: 9 decisions (2 Premature: verification outstanding, 7 Triable issue)2017, Appellate Term: 41 decisions (15 Premature: verification outstanding, 22 Triable issue, 4 Insurer's showing fails)2016, Appellate Term: 39 decisions (9 Premature: verification outstanding, 26 Triable issue, 4 Insurer's showing fails)2015, Appellate Term: 21 decisions (9 Premature: verification outstanding, 11 Triable issue, 1 Insurer's showing fails)2014, Appellate Term: 16 decisions (10 Premature: verification outstanding, 6 Triable issue)2013, Appellate Term: 11 decisions (9 Premature: verification outstanding, 1 Triable issue, 1 Insurer's showing fails)2012, Appellate Term: 12 decisions (10 Premature: verification outstanding, 2 Triable issue)2011, Appellate Term: 7 decisions (7 Premature: verification outstanding)2010, Appellate Term: 15 decisions (13 Premature: verification outstanding, 1 Insurer's showing fails, 1 Provider complied)2009, Appellate Term: 10 decisions (4 Premature: verification outstanding, 6 Insurer's showing fails)2008, Appellate Term: 12 decisions (2 Premature: verification outstanding, 10 Insurer's showing fails)2007, Appellate Term: 6 decisions (4 Premature: verification outstanding, 2 Insurer's showing fails)2006, Appellate Term: 7 decisions (3 Premature: verification outstanding, 4 Insurer's showing fails)2005, Appellate Term: 8 decisions (1 Triable issue, 6 Insurer's showing fails, 1 Provider complied)2004, Appellate Term: 3 decisions (1 Premature: verification outstanding, 2 Insurer's showing fails)2003, Appellate Term: 2 decisions (1 Triable issue, 1 Insurer's showing fails)2024, Appellate Term: 2 decisions (1 Triable issue, 1 Insurer's showing fails)2025, Appellate Term: 12 decisions (1 Premature: verification outstanding, 11 Nonresponse denial upheld)2026, Appellate Term: 1 decision (1 Insurer's showing fails)2023, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2022, Trial courts: 1 decision (1 Premature: verification outstanding)2021, Trial courts: 5 decisions (1 Nonresponse denial upheld, 2 Triable issue, 2 Insurer's showing fails)2020, Trial courts: 2 decisions (2 Insurer's showing fails)2018, Trial courts: 1 decision (1 Insurer's showing fails)2017, Trial courts: 6 decisions (1 Premature: verification outstanding, 1 Nonresponse denial upheld, 4 Insurer's showing fails)2014, Trial courts: 1 decision (1 Insurer's showing fails)2013, Trial courts: 1 decision (1 Triable issue)2012, Trial courts: 7 decisions (2 Premature: verification outstanding, 2 Triable issue, 2 Insurer's showing fails, 1 Provider complied)2011, Trial courts: 2 decisions (2 Insurer's showing fails)2010, Trial courts: 3 decisions (2 Premature: verification outstanding, 1 Insurer's showing fails)2009, Trial courts: 5 decisions (3 Premature: verification outstanding, 1 Insurer's showing fails, 1 Provider complied)2008, Trial courts: 8 decisions (5 Premature: verification outstanding, 1 Triable issue, 2 Insurer's showing fails)2007, Trial courts: 1 decision (1 Insurer's showing fails)2006, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Insurer's showing fails)2005, Trial courts: 8 decisions (3 Premature: verification outstanding, 4 Insurer's showing fails, 1 Provider complied)2004, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Provider complied)2024, Trial courts: 1 decision (1 Nonresponse denial upheld)2025, Trial courts: 4 decisions (2 Nonresponse denial upheld, 2 Triable issue)2026, Trial courts: 7 decisions (1 Premature: verification outstanding, 3 Nonresponse denial upheld, 1 Triable issue, 2 Insurer's showing fails)This decision
20052010201520202025
Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 82 (this one included) are in the same category.

Challenging the assignment of benefits

Open the full map

Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?

This decision: Insurer barred from contesting the assignment because it did not timely object, verify, deny or plead on that ground (rules on the question, but another ground decided the case)

Held the insurer not entitled to verification of the assignment, and the claim not premature, because it requested the assignment more than two months after receiving the hospital facility form that included it.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 12
  • Appellate TermApp Term 60
  • Trial courtsTrial 23
2007, Court of Appeals: 1 decision (1 Defense waived)2018, Appellate Division: 1 decision (1 Assignment sufficient)2013, Appellate Division: 1 decision (1 Defense waived)2011, Appellate Division: 1 decision (1 Defense waived)2007, Appellate Division: 2 decisions (2 Defense waived)2006, Appellate Division: 2 decisions (1 Defense waived, 1 Assignment defense upheld)2005, Appellate Division: 3 decisions (3 Defense waived)2004, Appellate Division: 1 decision (1 Defense waived)2025, Appellate Division: 1 decision (1 Assignment defense upheld)2016, Appellate Term: 1 decision (1 Defense waived)2014, Appellate Term: 1 decision (1 Defense waived)2013, Appellate Term: 1 decision (1 Defense waived)2010, Appellate Term: 5 decisions (3 Defense waived, 2 Assignment sufficient)2009, Appellate Term: 2 decisions (1 Defense waived, 1 Assignment sufficient)2008, Appellate Term: 4 decisions (2 Defense waived, 2 Assignment defense upheld)2007, Appellate Term: 3 decisions (1 Assignment sufficient, 1 Assignment defense upheld, 1 Issue of fact)2006, Appellate Term: 18 decisions (11 Defense waived, 6 Assignment sufficient, 1 Assignment defense upheld)2005, Appellate Term: 19 decisions (9 Defense waived, 10 Assignment sufficient)2004, Appellate Term: 6 decisions (1 Defense waived, 3 Assignment sufficient, 2 Issue of fact)2022, Trial courts: 1 decision (1 Defense waived)2020, Trial courts: 1 decision (1 Assignment defense upheld)2011, Trial courts: 2 decisions (1 Defense waived, 1 Assignment sufficient)2009, Trial courts: 1 decision (1 Defense waived)2007, Trial courts: 1 decision (1 Assignment sufficient)2006, Trial courts: 2 decisions (2 Assignment defense upheld)2005, Trial courts: 8 decisions (5 Defense waived, 2 Assignment sufficient, 1 Assignment defense upheld)2004, Trial courts: 7 decisions (3 Assignment sufficient, 4 Assignment defense upheld)This decision
20052010201520202025
Defense waivedAssignment sufficientAssignment defense upheldIssue of factThis decisionCites it or cited by itCited or followed

Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 48 (this one included) are in the same category.

Cited in this decision

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

  • Fortune Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50243(U))An insurer's acknowledgment of claim receipt does not concede the admissibility of the claim forms or the facts they contain.
  • Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483)The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
  • Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U)) Contrasted (cf., but see)The insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
  • 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.
  • Nyack Hosp. v Encompass Ins. Co. (2005 NY Slip Op 08962)An insurer's letters delaying payment pending its investigation do not toll the 30-day period for paying or denying a no-fault claim.
  • Nyack Hosp. v Allstate Ins. Co. (2006 NY Slip Op 52233(U))The insurer lacked a meritorious defense to vacate its default because a completed hospital facility form replaced the requested no-fault application.

Cited by

A label shows how the later decision treated this one.

  • Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co. (2010 NY Slip Op 50829(U)) FollowedThe insurer's affirmed peer reviews raised a triable issue of medical necessity and defeated the provider's summary judgment motion.
  • Westchester Neurodiagnostic, P.C. v Allstate Ins. Co. (2009 NY Slip Op 51385(U)) FollowedThe insurer failed to establish that its medical necessity defense was preserved by timely mailing of the denial.
  • Careplus Med. Supply, Inc. v AutoOne Ins. Co. (2009 NY Slip Op 51372(U)) FollowedThe insurer failed to prove proper mailing of the IME scheduling letters or the assignors' nonappearances.

Similar decisions

  • Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52046(U))The provider recovered on the first claim, but the second was premature because requested assignment verification remained unanswered.
  • Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
  • Westchester Med. Ctr. v A Cent. Ins. Co. (2014 NY Slip Op 50347(U))Resubmission of an identical claim does not restart the insurer's 30-day period to pay or deny it.
  • New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co. (2011 NY Slip Op 01628)The hospital satisfied verification requests by supplying the precise version of the NF-5 and assignment forms the insurer requested.
  • North N.Y. Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51557(U))The insurer's verification request, made two business days late, shortened its denial period to 28 days and rendered its denial untimely.
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