March 23, 2016

Tam Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 50402(U))

https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-21st-century-ins-co-2016-ny-slip-op50402u/

Court: Appellate Term, Second Department
Decided: March 23, 2016
Citation: 2016 NY Slip Op 50402(U)
Posture: Summary judgment
Outcome: Split result
Issues: Provider's prima facie case Timeliness and preclusion Staged accidents, lack of coverage
Legal questions: Claimant's prima facie case on motions · No covered accident (founded belief) (see the maps)

Cite as

Tam Med. Supply Corp. v 21st Century Ins. Co., 2016 NY Slip Op 50402(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 failed to establish a timely denial preserving policy-procurement fraud or prove that the injuries arose outside an insured incident. Its fraudulent-procurement defense required a timely denial; its separate lack-of-coverage defense escaped preclusion but lacked sufficient evidentiary support under Central Gen. Hosp. v Chubb Group of Ins. Cos. The provider likewise failed to establish entitlement to summary judgment because it proved neither a denial beyond the 30-day period nor a timely denial that was conclusory, vague or legally meritless under Insurance Law § 5106 (a). The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed, leaving both parties without summary judgment.

Reported in New York Official Reports at Tam Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 50402(U))

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

Tam Medical Supply Corp. as Assignee of SAUVEUR CABROUET, Appellant,
against
21st Century Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered December 17, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff’s moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, contrary to plaintiff’s contention, plaintiff failed to establish a prima facie case, and the burden never shifted to defendant.

Defendant, in support of its cross motion, failed to demonstrate that it is not precluded from asserting the defense of fraudulent procurement of the policy, as defendant failed to establish that it had timely denied plaintiff’s claim (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; Gutierrez v United Servs. Auto. Assn., 47 Misc 3d 152[A], 2015 NY Slip Op 50797[U] [App Term, 2d, 11th & 13th Jud Dists 2015]). Thus, defendant is not entitled to summary judgment on that ground. To the extent defendant also sought summary judgment on the ground of lack of coverage, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s proffered evidence was insufficient to establish, as a matter of law, that the assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp., 90 NY2d at 199; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: March 23, 2016

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.

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: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed to establish a prima facie case because its papers did not show the claim was not timely denied or that a timely denial was conclusory, vague or without merit.

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, 247 (this one included) are in the same category.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Insurer's motion denied: proof did not establish the defense prima facie; defense still open (rules on the question, but another ground decided the case)

Held the insurer's evidence insufficient to establish as a matter of law that the assignor's injuries did not arise from an insured incident, so its cross motion on the lack-of-coverage ground was denied.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 20 (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 Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc. (2011 NY Slip Op 00217) FollowedThe insurers' verification letters failed to toll the payment period, and their untimely denial precluded the residence-misrepresentation defense.
Infinity Health Prods., Ltd. v American Tr. Ins. Co. (2011 NY Slip Op 50195(U)) FollowedThe insurer failed to establish that the assignor's alleged injuries did not arise from an insured incident.

Cited by

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 50402(U))The insurer failed to connect the passenger assignor to alleged policy fraud or establish that the injuries arose outside an insured incident.

Similar decisions

Tam Med. Supply Corp. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 51352(U))The insurer established that it first learned of the accident through an NF-2 form submitted more than 30 days after the accident.
TAM Med. Supply Corp. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51423(U))The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish prima facie entitlement to judgment.
TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51318(U))The insurer established an IME nonappearance defense on the first claim but failed to prove a timely denial of the second.
Tam Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50914(U))The insurer's summary judgment motion asserting that outstanding verification made the provider's action premature was denied on appeal.
TAM Med. Supply Corp. v Hereford Ins. Co. (2018 NY Slip Op 51779(U))The insurer's record-search affidavits established that no relevant policy covered the vehicle on the accident date.