Coverage Counsel: A Minor Factual Discrepancy Does Not a Defective NF-10 Make

Monday, December 6, 2010

A Minor Factual Discrepancy Does Not a Defective NF-10 Make

NO-FAULT – SUFFICIENCY OF PARTIAL DENIAL – SUFFICIENCY OF NON-MOVANT'S OPPOSITION PAPERS
Westchester Med. Ctr. v. Nationwide Mut. Ins. Co.
(2nd Dept., decided 11/30/2010)

Plaintiff hospital sued Nationwide for monetary damages as a result of defendant's alleged failure to make timely payments on plaintiff's no- fault insurance claims, specifically $124,996 plus statutory no-fault interest and attorney's fees. Plaintiff moved for summary judgment and Nationwide opposed the motion.

Nassau County Supreme Court (Karen V. Murphy, J.) denied plaintiff's motion, holding:

To meet its burden and establish its entitlement to judgment as a matter of law, Plaintiff must submit evidence that the prescribed statutory biling forms have been timely mailed and received, and that the defendant failed to pay or deny the claim within the requisite 30-day period (See N.Y. and Presbyterian Hosp. v. Allstate Ins. Co., supra; LMK Psychological Serv., P.C. v. Liberty Mut. Ins., supra, Mount Sinai Hosp. v. Joan Service Corp., 22 A.D.3d 649, 803 N.Y.S.2d 102 (2d Dept., 2005)). Plaintiff has failed in meeting its burden. This Court is satisfied that Defendant did partially deny the claim in a timely fashion by indicating the fees sought were not in accordance with the applicable fee schedules. This Court does not find that the forms submitted were defective or improperly identified the applicant for benefits.

Plaintiff appealed and the Second Department, Appellate Division, AFFIRMED:

Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on its claim for benefits since the evidence demonstrates that the defendant made a partial payment and a partial denial of the claim within 30 days after receipt thereof (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512; see generally Alvarez v Prospect Hosp., 68 NY2d 320).

Furthermore, under the circumstances of this case, the minor factual discrepancy contained in the defendant's denial of claim form did not invalidate the denial. In addition, the denial was not conclusory or vague, and did not otherwise involve a defense which had no merit as a matter of law (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665, quoting Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44; cf. New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564).

Since the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the defendant's papers in opposition to the motion (see Moore v Stasi, 62 AD3d 764; Marshak v Migliore, 60 AD3d 647). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint.