November 7, 2007

Westchester Med. Ctr. v Allstate Ins. Co. (2007 NY Slip Op 08447)

https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-allstate-ins-co-2007-ny-slip-op-08447/

Court: Appellate Division, Second Department
Decided: November 7, 2007
Citation: 2007 NY Slip Op 08447 · 45 AD3d 579
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 1 and followed in 3 later decisions (see Cited by)
Issues: Provider's prima facie case Timeliness and preclusion
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Westchester Med. Ctr. v Allstate Ins. Co., 45 AD3d 579 (2d Dept 2007)

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 hospital failed to establish that the insurer's timely NF-10 denial was too vague or deficient to constitute a proper response. The Appellate Division, Second Department, affirmed denial of the hospital's summary judgment motion. Its moving papers did not demonstrate an insufficient denial under 11 NYCRR 65-3.4 (c) (11), and the denial was issued within the 30 days required by Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) (1). Because the hospital failed to establish prima facie entitlement to judgment, the court did not reach the insurer's opposition and declined judicial notice of diagnostic codes on the UB-92 form.

Reported in New York Official Reports at Westchester Med. Ctr. v Allstate Ins. Co. (2007 NY Slip Op 08447)

Westchester Med. Ctr. v Allstate Ins. Co.

2007 NY Slip Op 08447 [45 AD3d 579]

November 7, 2007

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, January 16, 2008

Westchester Medical Center, as Assignee of Rifene Durandisse, Appellant,
v
Allstate Insurance Company, Respondent.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Stern & Montana, LLP, New York, N.Y. (Richard Montana of counsel), for respondent.

In an action to recover no-fault medical payments under a certain insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated March 30, 2007, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff contended, in its motion for summary judgment on the complaint, that it mailed a single “NF-5” claim form dated March 8, 2006, to the defendant, that such form was received by the defendant on March 9, 2006 and that an “NF-10” denial of claim form dated March 23, 2006, issued by the defendant in response, was not sufficiently specific to constitute a valid denial (see generally New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458 [2006]; see also Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). The plaintiff further argued that the defendant, having failed to serve a sufficient “NF-10” denial of claim form within the critical 30-day post-receipt-of-claim period, should be precluded from denying the claim (see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42 AD3d 523 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]).

We agree with the Supreme Court that the plaintiff’s moving papers failed to establish that the “NF-10” denial of claim form was so vague or deficient as to not qualify as a proper response under 11 NYCRR 65-3.4 (c) (11). Moreover, the “NF-10” denial of claim form was issued within 30 [*2]days as required by Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) (1) (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 278; St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42 AD3d at 524). Accordingly, the plaintiff failed to establish, prima facie, its entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), and we need not reach the sufficiency of the defendant’s opposing papers (see Ayotte v Gervasio, 81 NY2d 1062 [1993]).

In light of our determination, we decline to take judicial notice of certain diagnostic codes contained on the “UB-92” form.

Motion by the appellant on an appeal from an order of the Supreme Court, Nassau County, dated March 30, 2007, to strike the respondent’s brief on the ground that it raises issues which were not raised before the Supreme Court, Nassau County. By decision and order on motion of this Court dated September 5, 2007, the motion was referred to the bench hearing the appeal for determination upon the argument or submission of the appeal.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and the argument of the appeal, it is

Ordered that the motion is denied. Lifson, J.P., Dillon, Covello and McCarthy, JJ., concur.

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.

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 its prima facie burden because its own papers showed a denial issued within 30 days and did not show the denial was too vague or deficient to be a proper response.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limited

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.

Cited in this decision

New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co. (2006 NY Slip Op 06223)The insurers were precluded from contesting a hospital claim because they failed to establish that their denial letter met regulatory requirements.
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.
St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co. (2007 NY Slip Op 06226)The hospital's challenge to the adequacy of the insurer's IME-based denial was raised for the first time in reply and was not considered.
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.

Cited by

A label shows how the later decision treated this one.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) Contrasted (cf., but see)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co. (2008 NY Slip Op 07211) FollowedThe insurer established that acupuncture reimbursement was properly limited to charges for similar procedures under existing fee schedules.
Westchester Med. Ctr. v Government Empls. Ins. Co. (2010 NY Slip Op 07331) FollowedThe insurer's intoxication defense failed because its evidence did not connect the assignor's alleged intoxication to the injuries.
Prime Psychological Servs., P.C. v American Tr. Ins. Co. (2008 NY Slip Op 28273)An insurer's failure to send a denial in duplicate does not invalidate an otherwise sufficient denial absent claimed notice defects or prejudice.

Similar decisions

Westchester Med. Ctr. v A Cent. Ins. Co. (2014 NY Slip Op 01319)The insurer raised a factual issue as to whether it mailed a proper denial 22 days after receiving requested verification.
Westchester Neurodiagnostic, P.C. v Allstate Ins. Co. (2009 NY Slip Op 51385(U))The insurer failed to establish that its medical necessity defense was preserved by timely mailing of the denial.
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.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Westchester Med. Ctr. v Country Wide Ins. Co. (2011 NY Slip Op 03838)The insurer raised a triable issue as to whether the hospital fully complied with its verification demand.