January 11, 2011

Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc. (2011 NY Slip Op 00217)

https://www.beynensonlaw.com/case-law/westchester-med-ctr-v-gmac-ins-co-online-inc-2011-ny-slip-op-00217/

Court: Appellate Division, Second Department
Decided: January 11, 2011
Citation: 2011 NY Slip Op 00217 · 80 AD3d 603
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Contrasted (cf., but see) in 1 and followed in 9 later decisions (see Cited by)
Issues: Verification requests Timeliness and preclusion Policy issues
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 (2d Dept 2011)

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 insurers' verification letters failed to toll the payment period, and their untimely denial precluded the residence-misrepresentation defense. The hospital proved receipt of its bill on May 15, 2009, and overdue payment under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). Verification letters sent before receipt or more than 10 days afterward did not toll the period under 11 NYCRR 65-3.5. The insurers failed to support their claimed earlier receipt dates with the bill. Their untimely denial precluded the defense that the assignor misrepresented residence when obtaining the policy. The Appellate Division, Second Department, affirmed summary judgment for the hospital on the second cause of action and denial of the insurers' cross motion; their North Carolina choice-of-law argument was unpreserved.

Reported in New York Official Reports at Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc. (2011 NY Slip Op 00217)

Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc.

2011 NY Slip Op 00217 [80 AD3d 603]

January 11, 2011

Appellate Division, Second Department

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

As corrected through Wednesday, March 9, 2011

Westchester Medical Center, Plaintiff, and New York and Presbyterian Hospital, as Assignee of Eleutrerio Castro, Respondent,
v
GMAC Ins. Co. Online, Inc., et al., Appellants.

—[*1] Freiberg & Peck, LLP, New York, N.Y. (Rachel N. Clark and Yilo K. Kang of counsel), for appellants.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover assigned first-party no-fault benefits for medical services rendered, the defendants appeal from an order of the Supreme Court, Nassau County (Palmieri, J.), entered October 15, 2009, which granted the motion of the plaintiff New York and Presbyterian Hospital for summary judgment on its second cause of action, and denied the defendants’ cross motion for summary judgment dismissing the second cause of action.

Ordered that the order is affirmed, with costs.

The plaintiff New York and Presbyterian Hospital (hereinafter the plaintiff) established, prima facie, its entitlement to judgment as a matter of law with respect to the second cause of action by demonstrating that the necessary billing documents were mailed to and received by the defendant and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729 [2007]; Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981, 981-982 [2007]).

In opposition to that prima facie showing, the defendants failed to raise a triable issue of fact as to whether they timely denied the claim. The evidence submitted by the plaintiff showed that the no-fault billing claim form was received by the defendants on May 15, 2009. The defendants submitted, inter alia, copies of letters that they sent to their insured dated April 27, 2009, and May 28, 2009, respectively, as well as copies of letters that they sent to the plaintiff on May 14, 2009, and June 15, 2009, respectively, seeking additional verification. However, the April 27, 2009, and May 14, 2009, letters were sent prior to the defendants’ receipt of the no-fault billing form, and the remaining letters were sent more than 10 days after the defendants’ receipt of that form. Consequently, those letters failed to toll the period in which the defendants were required to pay or deny the claim (see 11 NYCRR 65-3.5). In this regard, although the defendants stated, in their motion for summary judgment, that they first received the no-fault bill on May 7, 2009, or on May 9, 2009, the defendant did not establish that fact by submitting a copy of the bill [*2]received on one of those dates. Therefore, the defendants failed to submit evidence raising a triable issue of fact as to whether they timely denied the claim after issuing timely requests for additional verification (see 11 NYCRR 65-3.5; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]).

Moreover, although the defendants contend that they submitted evidence showing that the plaintiff’s assignor misrepresented his state of residence in connection with the issuance of the subject insurance policy, the defendants are precluded from asserting that defense, as a result of their untimely denial of the claim (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 564 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 319; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-1047 [2009]).

Although the defendants contend, on appeal, that North Carolina law should apply to this action, and that New York law does not preclude them from denying coverage, they did not raise that specific argument before the Supreme Court. Consequently, that contention is not properly before this Court (see Boudreau-Grillo v Ramirez, 74 AD3d 1265, 1268 [2010]; Matter of Panetta v Carroll, 62 AD3d 1010 [2009]). Dickerson, J.P., Hall, Austin and Cohen, 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: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the hospital established prima facie entitlement by showing the billing documents were mailed to and received by the insurer and payment was overdue.

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

Cited in this decision

Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2008 NY Slip Op 04867)An insurer invoking the intoxication exclusion must establish that intoxication proximately caused the accident to obtain summary judgment.
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 Liberty Mut. Ins. Co. (2007 NY Slip Op 04483)The hospital's mailing evidence established receipt of requested verification, defeating the insurer's claim that verification remained outstanding.
Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 09067)An insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered.
Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946)An insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589)The insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.

Cited by (16)

A label shows how the later decision treated this one.

Central Radiology Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 50948(U)) Contrasted (cf., but see)The insurer established that the assignor misrepresented the state of residence and was ineligible for no-fault benefits under the policy.
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.
Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 02390) FollowedThe hospital's UB-04 form was not the functional equivalent of an NF-5 and did not support tolling before receipt of the NF-5.
Stracar Med. Servs. v Nationwide Mut. Ins. Co. (2013 NY Slip Op 50633(U)) FollowedThe provider's claims were dismissed because a Virginia consent order voided the assignor's policy from inception.
Great Health Care Chiropractic, P.C. v Hanover Ins. Co. (2014 NY Slip Op 50359(U)) FollowedThe insurer's fraudulent-procurement defense was precluded because it failed to establish a timely denial on that ground.
Liberty Mut. Ins. Co. v Brutus (2022 NY Slip Op 50799(U)) FollowedAn insurer's material-misrepresentation defense is subject to the 30-day no-fault deadline for paying or denying claims.
Tam Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 50402(U)) FollowedThe insurer failed to establish a timely denial preserving policy-procurement fraud or prove that the injuries arose outside an insured incident.
Healthy Way Acupuncture, P.C. v USAA Gen. Indem. Co. (2016 NY Slip Op 51342(U)) FollowedAn insurer's untimely denial precludes a defense based on the assignor's misrepresentation of military status in the policy application.
Biddle v Safeco Ins. Co. (2012 NY Slip Op 51642(U)) FollowedThe insurer failed to prove timely denial because its claims representative's affidavit was not evidence in admissible form.
Sayyed DC, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50311(U)) FollowedThe insurer established its EUO nonappearance defense to six bills, but untimely denials barred that defense to two others.

Show all 16 citing decisions

Similar decisions

Westchester Med. Ctr. v Countrywide Ins. Co. (2007 NY Slip Op 09024)The insurer failed to prove mailing of verification requests and waived defenses based on incomplete assignment forms.
Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2011 NY Slip Op 08747)The insurer's timely denial defeated summary judgment on the provider's first cause of action alleging failure to pay or deny.
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.
Westchester Med. Ctr. v Hereford Ins. Co. (2012 NY Slip Op 04156)The provider proved mailing and receipt of its bill and the insurer's failure to pay or deny within 30 days; the insurer failed to raise a triable issue.
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.