March 6, 2012

Rally Chiropractic, P.C. v Nationwide Mut. Ins. Co. (2012 NY Slip Op 50417(U))

https://www.beynensonlaw.com/case-law/rally-chiropractic-p-c-v-nationwide-mut-ins-co-2012-ny-slip-op50417u/

Court: Appellate Term, Second Department
Decided: March 6, 2012
Citation: 2012 NY Slip Op 50417(U) · 34 Misc 3d 157(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues Timeliness and preclusion
Legal questions: Proof of mailing (see the maps)

Cite as

Rally Chiropractic, P.C. v Nationwide Mut. Ins. Co., 34 Misc 3d 157(A), 2012 NY Slip Op 50417(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 assignor was ineligible for coverage because the assignor did not regularly reside with the insured when the accident occurred. Both parties' proof established ineligibility under 11 NYCRR 65-1.1 (d) and (g). The insurer timely denied the claim on that ground; lack of coverage would remain available even with a defective or untimely denial. The provider also submitted the claim more than 45 days after the services, contrary to 11 NYCRR 65-1.1. The timely denial adequately stated that ground and advised that reasonable justification could excuse lateness under 11 NYCRR 65-3.3 (e), but the provider's explanation was insufficient. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint on the insurer's summary judgment motion.

Reported in New York Official Reports at Rally Chiropractic, P.C. v Nationwide Mut. Ins. Co. (2012 NY Slip Op 50417(U))

[*1]

Rally Chiropractic, P.C. v Nationwide Mut. Ins. Co.

2012 NY Slip Op 50417(U) [34 Misc 3d 157(A)]

Decided on March 6, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
2010-2004 Q C.

Rally Chiropractic, P.C. as Assignee of NARABIA OAKLEY, Appellant, —
against
Nationwide Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 14, 2010, deemed from a judgment of the same court entered June 24, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 14, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The proof submitted by both defendant and plaintiff established that plaintiff’s assignor was not an eligible injured person under the policy in issue (Insurance Department Regulations [11 NYCRR] § 65-1.1 [d]) since she did not “regularly reside[]” with the insured at the time of the accident (Insurance Department Regulations [11 NYCRR] § 65-1.1 [g]). Defendant further established that it had timely denied plaintiff’s claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on this ground. In any [*2]event, even if defendant’s denial of claim form had been defective or untimely, the defense of lack of coverage is not subject to preclusion (Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d & 11th Jud Dists 2006]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]).

Moreover, it is undisputed that plaintiff submitted the claim at issue to defendant more than 45 days after the dates the services were rendered (Insurance Department Regulations [11 NYCRR] § 65-1.1). Contrary to plaintiff’s contention, defendant’s timely denial of claim form adequately advised plaintiff of the basis for the denials. The denial of claim form further advised plaintiff that the late submission of the claim would be excused if plaintiff provided a reasonable justification for the lateness (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). We find that the reason proffered by plaintiff was insufficient.

Accordingly, the judgment of the Civil Court is affirmed.
Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012

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.

Proof of mailing

Open the full map

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 (rules on the question, but another ground decided the case)

Held the insurer established that it timely denied the claim, though the ineligibility defense was in any event not subject to preclusion.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co. (2006 NYSlipOp 51351(U)) FollowedThe insurer's conclusory assertion that the assignor did not reside with the insured failed to raise a coverage issue.

Cited by

A label shows how the later decision treated this one.

Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51351(U)) FollowedThe insurer established payment of one claim, untimely submission of three claims, and lack of medical necessity for the remaining services.

Similar decisions

D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51584(U))The insurer's verification follow-ups mailed on the 30th calendar day were premature and did not toll its time to pay or deny.
Remedy Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50935(U))The provider failed to raise a factual issue that it supplied outstanding verification or reasonably justified withholding it.
Vital Chiropractic, P.C. v Nationwide Ins. Co. (2019 NY Slip Op 50425(U))The insurer proved IME nonappearances and timely denials for all but one claim, as to which receipt remained disputed.
Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50373(U))The insurer failed to prove a timely denial, and the provider failed to establish its prima facie entitlement to summary judgment.
Compas Med., P.C. v ELRAC, Inc. (2016 NY Slip Op 51497(U))The defendant established untimely accident notice, timely denials, and the absence of a reasonable justification for the delay.