November 13, 2007
Westchester Med. Ctr. v Countrywide Ins. Co. (2007 NY Slip Op 09024)
https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-countrywide-ins-co-2007-ny-slip-op-09024/
- Decided
- November 13, 2007
- Citation
- 2007 NY Slip Op 09024 · 45 AD3d 676
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Distinguished in 1, contrasted (cf., but see) in 2 and followed in 13 later decisions (see Cited by)
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.
Reported in New York Official Reports at Westchester Med. Ctr. v Countrywide Ins. Co. (2007 NY Slip Op 09024)
| Westchester Med. Ctr. v Countrywide Ins. Co. |
| 2007 NY Slip Op 09024 [45 AD3d 676] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Westchester Medical Center, Respondent, v Countrywide Insurance Company, Appellant. |
—[*1] Jaffe & Koumourdas, New York, N.Y. (Jean H. Kang of counsel), for appellant.
Joseph Henig, P.C., Bellmore, N.Y., for respondent.
In an action to recover no-fault medical payments, the defendant appeals from a judgment of the Supreme Court, Nassau County (Jonas, J.), entered August 23, 2006, which, upon an order of the same court dated August 14, 2006, granting the plaintiff’s motion for summary judgment on the complaint and denying its cross motion for summary judgment dismissing the first cause of action, is in favor of the plaintiff and against it in the principal sum of $13,491.40.
Ordered that the judgment is affirmed, with costs.
In support of its motion for summary judgment, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the requisite billing forms, the affidavits from its billers, as well as the certified mail receipts, and the signed return receipt cards which referenced the patients and the forms (see New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683 [2007]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]). This evidence demonstrated that the defendant received proof of the claims and failed to pay the bills or issue a denial of claim form within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a]).
In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact, and in support of its cross motion for summary judgment dismissing the first cause of action, the defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law. The defendant contended that the claim for payment with respect to the first cause of action was [*2]premature because the plaintiff had failed to respond to its verification requests (see 11 NYCRR 65-3.5 [b]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). The defendant submitted the affidavit of a supervisor employed in its claims department, which stated, with respect to the first cause of action, that a timely verification request was mailed on August 11, 2005, and a follow-up request was mailed on September 10, 2005. The supervisor, however, had no personal knowledge that the verification requests were actually mailed on the dates they were issued, and her conclusory allegations regarding the defendant’s office practice and procedure failed to establish that the practice and procedure was designed to ensure that the verification requests were addressed to the proper party and properly mailed (see Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]; Matter of Government Empls. Ins. Co. [Hartford Ins. Co.], 112 AD2d 226, 227-228 [1985]). The defendant’s submissions were insufficient to create a presumption that the verification requests were received by the proper party (see Matter of Gonzalez [Ross], 47 NY2d 922, 923 [1979]; Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d at 568; Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]). Furthermore, the defendant’s failure to timely object to the completeness of the assignment of benefits forms or to seek verification of the assignments constituted a waiver of any defenses based thereon (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]). Accordingly, the Supreme Court properly granted the motion and denied the cross motion. Spolzino, J.P., Krausman, Carni and Dickerson, JJ., concur.
Legal questions (4)
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer's supervisor lacked personal knowledge of the mailings and gave only conclusory statements of office practice not shown to ensure proper addressing and mailing, so no presumption of receipt arose.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (this one included) are in the same category. 9 decisions in other departments that cite or are cited by this one are on the full map.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Defense rejected because the insurer's requests or proof were deficient
Rejected the prematurity defense because the insurer failed to prove its verification and follow-up requests were mailed to and received by the proper party.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 82 (this one included) are in the same category. 3 decisions in other departments that cite or are cited by this one are on 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 its prima facie showing through billing forms, billers' affidavits, certified mail receipts and signed return receipt cards proving the insurer received the claims and failed to pay or deny within 30 days.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.
Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?
This decision: Insurer barred from contesting the assignment because it did not timely object, verify, deny or plead on that ground (rules on the question, but another ground decided the case)
Held the insurer waived any defenses based on the assignment of benefits forms because it failed to timely object to their completeness or seek verification of the assignments.
Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 48 (this one included) are in the same category.
Cited in this decision
- New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 01537)The hospital established receipt of its no-fault billing and the insurer's failure to respond within the required 30-day period.
- Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2006 NY Slip Op 08214)An insurer waives claim-form and assignment defenses by failing to timely object to form adequacy or seek assignment verification.
- New York & Presbyterian Hospital v Allstate Insurance Company (2006 NY Slip Op 04815)An insurer liable for overdue no-fault benefits must pay 2% monthly interest from 30 days after claim presentation until payment.
- New York & Presbyt. Hosp. v Progressive Cas. Ins. Co. (2004 NY Slip Op 01750)The insurer proved policy exhaustion on one hospital claim and absence of coverage on another, requiring dismissal of both.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558)The providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- Nyack Hosp. v Encompass Ins. Co. (2005 NY Slip Op 08962)An insurer's letters delaying payment pending its investigation do not toll the 30-day period for paying or denying a no-fault claim.
- Hospital for Joint Diseases v Allstate Ins. Co. (2005 NY Slip Op 06192)An insurer waived assignment objections by failing to timely object to hospital forms or seek verification of the assignments.
Cited by (24)
A label shows how the later decision treated this one.
- Lenox Hill Hosp. v Allstate Ins. Co. (2011 NY Slip Op 50800(U)) DistinguishedThe hospitals failed to establish that their billing documents were business records and were denied summary judgment.
- 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.
- NY Rehab Pain Mgt. & Med. Servs., PC v State Farm Auto Ins. Co. (2016 NY Slip Op 50821(U)) Contrasted (cf., but see)The insurer established mailing of its EUO notices and denials and the provider's failure to appear at two scheduled EUOs. The Supreme Court, Nassau County, granted the insurer's summary judgment motion and dismissed the complaint.
- New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp. (2014 NY Slip Op 00639) FollowedOutstanding verification warranted dismissal of the first cause of action, but defective verification proof supported payment on the second.
- A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2009 NY Slip Op 51016(U)) FollowedThe providers obtained partial summary judgment for untimely denials, unproved verification tolling, and unsworn peer reviews.
- Orthotech Express Corp. v MVAIC (2012 NY Slip Op 51913(U)) FollowedMVAIC failed to establish proper addressing and mailing of IME notices through its contractor's general description of mailing practices.
- Nyack Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52184(U)) FollowedAn insurer must accept a completed hospital facility form in place of an application for motor vehicle no-fault benefits.
- A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2008 NY Slip Op 52651(U)) FollowedThe insurer failed to raise triable issues on overdue claims or claims challenged only through unsworn peer reviews.
- Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co. (2015 NY Slip Op 50565(U)) FollowedThe insurer established late submission of one claim, while conflicting expert opinions left the orthopedic surgery claim's necessity for trial.
- Acupuncture Approach PC v MVAIC (2013 NY Slip Op 51676(U)) FollowedMVAIC failed to establish proper IME notice mailing because its scheduling affidavit lacked personal knowledge and described only general practices.
Show all 24 citing decisions
- SK Prime Med. Supply, Inc. v Hertz Claim Mgt. Corp. (2012 NY Slip Op 52192(U)) Followed
- ZZ Acupuncture, P.C. v Kemper Ins. Co. (2024 NY Slip Op 51205(U)) Followed
- Magenta Med. P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 52236(U)) Followed
- Pomona Med. Diagnostic P.C. v Praetorian Ins. Co. (2013 NY Slip Op 51798(U)) Followed
- EMA Acupuncture v Statewide Ins. Co. (2015 NY Slip Op 51622(U)) Followed
- Dowd v Allstate Ins. Co. (2019 NY Slip Op 50648(U)) Followed
- Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. (2009 NY Slip Op 00351)
- Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C. (2016 NY Slip Op 03485)
- Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc. (2015 NY Slip Op 03340)
- Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51065(U))
- New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co. (2011 NY Slip Op 01628)
- Lenox Hill Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 20530)
- Uniondale Chiropractic Off. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51687(U))
- Sabodash v Hereford Ins. Co. (2021 NY Slip Op 51099(U))
Similar decisions
- 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.
- Wyckoff Hgts. Med. Ctr. v Country-Wide Ins. Co. (2010 NY Slip Op 02552)The hospital's completed NF-5 submitted within 45 days after services satisfied the policy's written notice requirement.
- Westchester Med. Ctr. v Allstate Ins. Co. (2013 NY Slip Op 08616)The insurer failed to establish a verification toll because it offered no evidence of mailing a required follow-up request.
- New York & Presbyt. Hosp. v Countrywide Ins. Co. (2007 NY Slip Op 07675)The insurer raised verification and billing-date issues on one claim, but failed to rebut proof of receipt of verification on another.
- 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.