May 17, 2011
NYU Hosp. for Joint Diseases v Country Wide Ins. Co. (2011 NY Slip Op 04219)
https://www.beynensonlaw.com/case-law/nyu-hosp-for-joint-diseases-v-country-wide-ins-co-2011-ny-slip-op04219/
- Decided
- May 17, 2011
- Citation
- 2011 NY Slip Op 04219 · 84 AD3d 1043
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- Claimant's prima facie case on motions · 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 NYU Hosp. for Joint Diseases v Country Wide Ins. Co. (2011 NY Slip Op 04219)
| NYU Hosp. for Joint Diseases v Country Wide Ins. Co. |
| 2011 NY Slip Op 04219 [84 AD3d 1043] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| NYU Hospital for Joint Diseases, as Assignee of Racquel Uviles,
Respondent, v Country Wide Insurance Company, Appellant. |
—[*1] Jaffe & Koumourdas, LLP, New York, N.Y. (Thomas Torto and Jason Levine of counsel), for appellant.
Joseph Henig, P.C., Bellmore, N.Y., for respondent.
In an action to recover no-fault benefits under an insurance contract, the defendant appeals from a judgment of the Supreme Court, Nassau County (Lally, J.), entered May 20, 2010, which, upon an order of the same court entered May 7, 2010, granting the plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint, is in favor of the plaintiff and against it in the total sum of $22,446.23.
Ordered that the judgment is affirmed, with costs.
The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting, among other things, the requisite billing forms, an affidavit from its third-party biller, the certified mail receipt, and the signed return-receipt card referencing the patient and the forms, which demonstrated that the plaintiff mailed the necessary billing documents to the defendant, that the defendant received them, and that the payment of no-fault benefits was overdue (see New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co., 82 AD3d 723 [2011]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 904 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]). In opposition, the defendant failed to raise a triable issue of fact as to whether it timely and effectively denied the plaintiff’s claim (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “A proper denial of claim must include the information called for in the prescribed denial of claim form” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; see 11 NYCRR 65-3.4 [c] [11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004]). Here, even assuming that the denial of claim form issued by the defendant was timely and was properly mailed to the plaintiff, the form “was fatally defective in that it omitted numerous items of requested information, and thus was incomplete” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565; see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; compare St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733 [2010]). The denial also incorrectly listed Raquel Uviles as the applicant for benefits instead of the plaintiff (see St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871 [2011]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 [*2]AD3d at 565). Accordingly, even if the denial was timely mailed, it was fatally defective (see St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d at 871; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d at 929; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565).
For the same reasons, the defendant, in support of its cross motion for summary judgment dismissing the complaint, failed to make a prima facie showing that it timely denied the claim.
The defendant’s contention that the action should be dismissed as premature is improperly raised for the first time on appeal, and therefore is not properly before this Court (see Matter of Panetta v Carroll, 62 AD3d 1010 [2009]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853, 854 [2008]). Contrary to the defendant’s contention, it does not present a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture (see Matter of Panetta v Carroll, 62 AD3d at 1010; KPSD Mineola, Inc. v Jahn, 57 AD3d at 854). Accordingly, this argument may not be reached for the first time on appeal.
The parties’ remaining contentions are without merit or need not be reached in light of our determination. Covello, J.P., Eng, Chambers and Miller, 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.
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 established its prima facie case through billing forms, its biller's affidavit, certified mail receipt and signed return-receipt card showing mailing, receipt and overdue payment; the result rested on the insurer's defective denial.
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.
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 established mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)
Held the third-party biller's affidavit, certified mail receipt and signed return-receipt card referencing the patient and forms showed the bill was mailed to and received by the insurer.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 08038)The hospital's claim was premature because unrebutted proof showed that it ignored timely verification and follow-up requests.
- Westchester Med. Ctr. v Safeco Ins. Co. of Am. (2007 NY Slip Op 04484)The insurer waived claim-form and assignment defenses by failing to object timely to the forms or seek assignment verification.
- New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (2007 NY Slip Op 03671)An insurer need not set forth a medical rationale in a denial form when the denial rests on a medical examination or peer review report.
- 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.
- Nyack Hosp. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 07663)A timely but fatally defective denial cannot be cured by supplying omitted information after the 30-day denial period expires.
- Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 01458) FollowedThe insurer's defective denial and insufficient mailing proof precluded its intoxication exclusion defense.
- St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co. (2011 NY Slip Op 01828) FollowedThe insurer's timely denials were fatally defective because they misstated the bill and disputed amounts and named the wrong applicant.
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.
- Eagle Surgical Supply, Inc. v Allstate Ins. Co. (2014 NY Slip Op 51798(U))The provider's objections to EUO requests were not heard because it did not claim to have responded to the requests.
- AR Med. Rehabilitation v State-Wide Ins. Co. (2015 NY Slip Op 25287)A provider may use the insurer's NF-10 denial as an admission of claim receipt without a business-record foundation.
- Ottey v Maya Assur. Co. (2022 NY Slip Op 03397)The injured claimant's new grounds for equitably estopping the insurer from denying coverage were unpreserved for appellate review.
- Carlin v Hereford Ins. Co. (2015 NY Slip Op 01601)Overdue no-fault benefits bear simple interest at 2% per month, rather than compound interest.
- Art of Healing Medicine, P.C. v Utica Mut. Ins. Co. (2016 NY Slip Op 51610(U))The insurer established timely mailing of EUO notices and denials and the assignor's nonappearance; the medical-necessity challenge was unpreserved.
Similar decisions
- NYU-Hospital for Joint Diseases v Allstate Ins. Co. (2014 NY Slip Op 08613)The hospital failed to establish entitlement to summary judgment because its own papers included a timely and sufficient denial.
- 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.
- Mount Sinai Hosp. v Country Wide Ins. Co. (2011 NY Slip Op 05680)The insurer raised factual issues about policy exhaustion during a verification toll and payment with overdue interest before suit.
- 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.
- New York & Presbyt. Hosp. v American Tr. Ins. Co. (2007 NY Slip Op 09376)The insurer raised a factual issue by showing a timely denial based on bills submitted more than 45 days after the last medical service.