March 16, 2016

Ultimate Health Prods., Inc. v Hereford Ins. Co. (2016 NY Slip Op 50367(U))

https://www.beynensonlaw.com/case-law/ultimate-health-prods-inc-v-hereford-ins-co-2016-ny-slip-op50367u/

Court: Appellate Term, Second Department
Decided: March 16, 2016
Citation: 2016 NY Slip Op 50367(U) · 51 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues Timeliness and preclusion

Cite as

Ultimate Health Prods., Inc. v Hereford Ins. Co., 51 Misc 3d 127(A), 2016 NY Slip Op 50367(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.

A defense that no policy covers the claimed no-fault benefits is not precluded by defects in the insurer's denial or its timeliness. The provider sought assigned first-party no-fault benefits under a policy that the insurer established was a workers' compensation policy. That policy did not cover the claim, and the provider neither demonstrated an applicable automobile insurance policy issued by the insurer nor otherwise raised a triable issue of fact. Under Zappone v Home Ins. Co. and Central Gen. Hosp. v Chubb Group of Ins. Cos., the lack-of-coverage defense remained available regardless of denial issues. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at Ultimate Health Prods., Inc. v Hereford Ins. Co. (2016 NY Slip Op 50367(U))

[*1]

Ultimate Health Prods., Inc. v Hereford Ins. Co.

2016 NY Slip Op 50367(U) [51 Misc 3d 127(A)]

Decided on March 16, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1470 K C

Ultimate Health Products, Inc., as Assignee of PAUL LUCKNER, Appellant,
against
Hereford Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 6, 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that defendant had established that there was no coverage for no-fault benefits since defendant had not issued an automobile insurance policy covering the underlying accident.

Contrary to plaintiff’s contention, a lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its cross motion were sufficient to establish that the policy being sued upon was a workers’ compensation insurance policy which did not cover plaintiff’s claim to receive reimbursement of assigned first-party no-fault benefits. As plaintiff failed to demonstrate the existence of an applicable automobile insurance policy issued by defendant or to otherwise raise a triable issue of fact in opposition to defendant’s cross motion, the order is affirmed.

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

Decision Date: March 16, 2016

Cited by

A label shows how the later decision treated this one.

Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co. (2020 NY Slip Op 51379(U)) FollowedA lack-of-coverage defense is not precluded by defects in, or untimeliness of, an insurer's denial of claim.

Similar decisions

Flatbush Chiropractic, P.C. v Hereford Ins. Co. (2015 NY Slip Op 51712(U))A lack-of-coverage defense is not precluded by defects in the insurer's denial or its timeliness.
Active Care Med. Supply Corp. v Hartford Ins. Co. (2018 NY Slip Op 51591(U))A lack-of-coverage defense based on workers' compensation benefits is not precluded by defects in or untimeliness of a no-fault denial.
Ultimate Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50377(U))Appearance at a duly scheduled EUO is a condition precedent to an insurer's liability under the policy.
Ultimate Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50921(U))The insurer's summary judgment cross motion asserting outstanding verification was denied on appeal; the provider's motion remained denied.
Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51592(U))The insurer established timely EUO notices and denial and the assignor's failure to appear, warranting dismissal of the claim.