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July 1, 2008

Westchester Med. Ctr. v Allstate Ins. Co. (2008 NY Slip Op 06146)

https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-allstate-ins-co-2008-ny-slip-op-06146/

Court
Appellate Division, Second Department
Decided
July 1, 2008
Citation
2008 NY Slip Op 06146 · 53 AD3d 481
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Distinguished in 1, contrasted (cf., but see) in 2 and followed in 1 later decisions (see Cited by)
Issues
Verification requests
Legal questions
Outstanding verification and premature actions · Claimant's prima facie case on motions (see the maps)
Cite as
Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 (2d Dept 2008)

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 raised a factual issue about the provider's compliance with timely verification requests for toxicology information. The provider initially established entitlement to summary judgment on the first cause of action by showing that prescribed billing forms were mailed to and received by the insurer and that payment was overdue. The insurer's opposition, however, raised a triable issue regarding compliance with its timely and properly sent requests for information concerning the assignor's toxicology report. Applying Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1) and (2), the Appellate Division, Second Department, reversed the order, insofar as appealed from, and denied the provider's motion for summary judgment on that cause of action.

Reported in New York Official Reports at Westchester Med. Ctr. v Allstate Ins. Co. (2008 NY Slip Op 06146)

Westchester Med. Ctr. v Allstate Ins. Co.
2008 NY Slip Op 06146 [53 AD3d 481]
July 1, 2008
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, September 3, 2008
Westchester Medical Center, Respondent,
v
Allstate Insurance Company, Appellant.

—[*1] Stern & Montana, LLP, New York, N.Y. (Richard Montana of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y. (Mark Green of counsel), for respondent.

In an action to recover no fault benefits under an insurance contract, the defendant appeals from so much of an order of the Supreme Court, Nassau County (O’Connell, J.), dated September 12, 2007, as granted the plaintiff’s motion for summary judgment on the first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff’s motion for summary judgment on the first cause of action is denied.

The plaintiff made a prima facie showing of entitlement to summary judgment on the first cause of action to recover no fault benefits on behalf of its assignor, Vincent Dailey, by demonstrating that the prescribed statutory billing forms were mailed to and received by the defendant and that payment was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a]; Westchester Med. Ctr. v AIG, Inc., 36 AD3d 900 [2007]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). In opposition, however, the defendant raised a triable issue of fact as to whether the plaintiff complied with the defendant’s timely and properly sent verification requests seeking information regarding Vincent Dailey’s toxicology report. Accordingly, the plaintiff was not entitled to summary judgment on the first cause of action (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1], [2]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771 [2006]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]). Fisher, J.P., Santucci, Angiolillo and McCarthy, 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.

Outstanding verification and premature actions

Open the full map

Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Fact issues remain on whether the verification defense applies

Held the insurer raised a triable issue whether the hospital complied with its timely, properly sent verification requests for the assignor's toxicology report, defeating summary judgment.

  • Appellate DivisionApp Div 30
  • Appellate TermApp Term 276
  • Trial courtsTrial 68
2014, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2013, Appellate Division: 2 decisions (2 Insurer's showing fails)2011, Appellate Division: 5 decisions (3 Premature: verification outstanding, 1 Triable issue, 1 Provider complied)2009, Appellate Division: 1 decision (1 Premature: verification outstanding)2008, Appellate Division: 2 decisions (2 Triable issue)2007, Appellate Division: 6 decisions (3 Premature: verification outstanding, 1 Triable issue, 1 Insurer's showing fails, 1 Provider complied)2006, Appellate Division: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2005, Appellate Division: 4 decisions (2 Premature: verification outstanding, 1 Triable issue, 1 Provider complied)2004, Appellate Division: 5 decisions (1 Premature: verification outstanding, 1 Nonresponse denial upheld, 1 Triable issue, 2 Insurer's showing fails)2026, Appellate Division: 1 decision (1 Nonresponse denial upheld)2023, Appellate Term: 2 decisions (2 Nonresponse denial upheld)2022, Appellate Term: 14 decisions (6 Premature: verification outstanding, 1 Nonresponse denial upheld, 4 Triable issue, 3 Insurer's showing fails)2021, Appellate Term: 4 decisions (3 Premature: verification outstanding, 1 Triable issue)2020, Appellate Term: 5 decisions (1 Premature: verification outstanding, 3 Triable issue, 1 Insurer's showing fails)2019, Appellate Term: 25 decisions (11 Premature: verification outstanding, 3 Nonresponse denial upheld, 10 Triable issue, 1 Insurer's showing fails)2018, Appellate Term: 9 decisions (2 Premature: verification outstanding, 7 Triable issue)2017, Appellate Term: 38 decisions (13 Premature: verification outstanding, 22 Triable issue, 3 Insurer's showing fails)2016, Appellate Term: 39 decisions (9 Premature: verification outstanding, 26 Triable issue, 4 Insurer's showing fails)2015, Appellate Term: 21 decisions (9 Premature: verification outstanding, 11 Triable issue, 1 Insurer's showing fails)2014, Appellate Term: 16 decisions (10 Premature: verification outstanding, 6 Triable issue)2013, Appellate Term: 11 decisions (9 Premature: verification outstanding, 1 Triable issue, 1 Insurer's showing fails)2012, Appellate Term: 12 decisions (10 Premature: verification outstanding, 2 Triable issue)2011, Appellate Term: 7 decisions (7 Premature: verification outstanding)2010, Appellate Term: 15 decisions (13 Premature: verification outstanding, 1 Insurer's showing fails, 1 Provider complied)2009, Appellate Term: 9 decisions (4 Premature: verification outstanding, 5 Insurer's showing fails)2008, Appellate Term: 12 decisions (2 Premature: verification outstanding, 10 Insurer's showing fails)2007, Appellate Term: 6 decisions (4 Premature: verification outstanding, 2 Insurer's showing fails)2006, Appellate Term: 7 decisions (3 Premature: verification outstanding, 4 Insurer's showing fails)2005, Appellate Term: 8 decisions (1 Triable issue, 6 Insurer's showing fails, 1 Provider complied)2004, Appellate Term: 3 decisions (1 Premature: verification outstanding, 2 Insurer's showing fails)2003, Appellate Term: 2 decisions (1 Triable issue, 1 Insurer's showing fails)2024, Appellate Term: 2 decisions (1 Triable issue, 1 Insurer's showing fails)2025, Appellate Term: 8 decisions (1 Premature: verification outstanding, 7 Nonresponse denial upheld)2026, Appellate Term: 1 decision (1 Insurer's showing fails)2023, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Triable issue)2022, Trial courts: 1 decision (1 Premature: verification outstanding)2021, Trial courts: 5 decisions (1 Nonresponse denial upheld, 2 Triable issue, 2 Insurer's showing fails)2020, Trial courts: 2 decisions (2 Insurer's showing fails)2018, Trial courts: 1 decision (1 Insurer's showing fails)2017, Trial courts: 6 decisions (1 Premature: verification outstanding, 1 Nonresponse denial upheld, 4 Insurer's showing fails)2014, Trial courts: 1 decision (1 Insurer's showing fails)2013, Trial courts: 1 decision (1 Triable issue)2012, Trial courts: 7 decisions (2 Premature: verification outstanding, 2 Triable issue, 2 Insurer's showing fails, 1 Provider complied)2011, Trial courts: 2 decisions (2 Insurer's showing fails)2010, Trial courts: 3 decisions (2 Premature: verification outstanding, 1 Insurer's showing fails)2009, Trial courts: 5 decisions (3 Premature: verification outstanding, 1 Insurer's showing fails, 1 Provider complied)2008, Trial courts: 8 decisions (5 Premature: verification outstanding, 1 Triable issue, 2 Insurer's showing fails)2007, Trial courts: 1 decision (1 Insurer's showing fails)2006, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Insurer's showing fails)2005, Trial courts: 8 decisions (3 Premature: verification outstanding, 4 Insurer's showing fails, 1 Provider complied)2004, Trial courts: 2 decisions (1 Premature: verification outstanding, 1 Provider complied)2024, Trial courts: 1 decision (1 Nonresponse denial upheld)2025, Trial courts: 4 decisions (2 Nonresponse denial upheld, 2 Triable issue)2026, Trial courts: 6 decisions (1 Premature: verification outstanding, 2 Nonresponse denial upheld, 1 Triable issue, 2 Insurer's showing fails)This decision
20052010201520202025
Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.

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: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the hospital made a prima facie showing by demonstrating the prescribed billing forms were mailed to and received by the insurer and payment was overdue, though the motion failed on a verification issue.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 80
  • Appellate TermApp Term 843
  • Trial courtsTrial 138
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 15 decisions (12 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 14 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
  • Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 07690) FollowedThe insurer failed to establish intoxication or causation as a matter of law, but raised factual issues defeating the provider's motion.
  • Montefiore Med. Ctr. v Government Empls. Ins. Co. (2006 NY Slip Op 08953) FollowedAn insurer's additional verification request following an N-F5 submission need not use a prescribed form to toll the payment deadline.
  • Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 05413) FollowedThe hospitals' first and fifth claims were dismissed because policy limits were exhausted and requested verification remained outstanding.

Cited by

A label shows how the later decision treated this one.

  • Westchester Med. Ctr. v One Beacon Ins. Co. (2008 NY Slip Op 52580(U)) DistinguishedThe insurer's intoxication evidence raised factual questions but did not establish that intoxication caused the accident.
  • A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2009 NY Slip Op 51016(U)) Contrasted (cf., but see)The providers obtained partial summary judgment for untimely denials, unproved verification tolling, and unsworn peer reviews.
  • A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2008 NY Slip Op 52651(U)) Contrasted (cf., but see)The insurer failed to raise triable issues on overdue claims or claims challenged only through unsworn peer reviews.
  • Westchester Med. Ctr. v Country Wide Ins. Co. (2011 NY Slip Op 03838) FollowedThe insurer raised a triable issue as to whether the hospital fully complied with its verification demand.
  • Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. (2009 NY Slip Op 00351)Judicially noticed diagnosis codes alone do not establish that treatment was wholly unrelated to an insured automobile accident.
  • St. Barnabas Hosp. v American Tr. Ins. Co. (2008 NY Slip Op 09585)The insurer raised a triable issue whether the provider timely complied with its verification demand, defeating the provider's summary judgment motion.

Similar decisions

  • 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.
  • 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 Med. Ctr. v Clarendon Natl. Ins. Co. (2008 NY Slip Op 09786)The insurer raised a triable issue whether it timely and properly denied a claim based on alleged intoxication after receiving verification.
  • Westchester Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 00500)The insurer's contention that a complete absence of coverage survived its untimely denial was improperly raised for the first time on appeal.
  • Westchester Med. Ctr. v Lancer Ins. Co. (2012 NY Slip Op 02867)The insurer defeated the provider's summary judgment motion by proving timely verification requests and denial after verification was received.
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