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A very impressive win.May 31, 2011

NYU-Hospital for Joint Diseases v Esurance Ins. Co., 2011 NY Slip Op 04436 (2d Dept. 2011)

“Esurance issued a denial of claim, which incorrectly stated the amount of the claim and the amount in dispute. Esurance denied the claim, inter alia, because Cancian allegedly was intoxicated at the time of the accident.

The hospital then commenced this action seeking payment of its bill, and moved for summary judgment on the complaint arguing, among other things, that the denial of claim was untimely, fatally defective for the above-mentioned mistakes, and that Esurance’s defense that Cancian was intoxicated was unsupported by the evidence.

“A proper denial of [a] claim [for no-fault benefits] must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4[c][11]) and must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated'” (St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996, 996, quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664). A timely denial of a no-fault insurance medical claim alone does not, however, avoid preclusion where the “denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d at 665).

Here, the hospital established its prima facie entitlement to judgment as a matter of law based on the untimeliness of the denial of claim….

In opposition to the motion, however, Esurance raised a triable issue of fact as to whether the denial of claim was timely issued by submitting the affidavit of an employee with knowledge of its “standard office practices or procedures designed to ensure that items were properly addressed and mailed” (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), wherein he attested that a denial of claim was timely issued to the hospital. We note that while the denial of claim contained errors, they were not significant by themselves, and did not pose any possibility of confusion or prejudice to the hospital under the circumstances; thus, the denial was not rendered a nullity

Further, Esurance raised a triable issue of fact as to whether Cancian was “injured as a result of operating a motor vehicle while in an intoxicated condition” (Insurance Law § 5103[b][2]). Contrary to the hospital’s contention, the personal observations of the police officer present at the scene of the accident as recorded in the police accident report were properly considered by the Supreme Court under the business record exception to the hearsay rule (see CPLR 4518[a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 753).”

Very good work on the part of defense counsel.  Defense counsel tore apart the ridiculous “how was I supposed to know what was denied, I only spend my life doing medical collections work.”  He also tore apart “the police report was uncertified” even though the whole world knows it says what it says.  Lastly, defense counsel beat back the untimely denial argument, but I am not sure how or what the facts were regarding this argument.  I have an email into defense counsel to find out what actually happened.

7 Responses

  1. raymond zuppa says:

    Working at home and catching some of the myriad Judge shows: Judge Judy; Judge Joe Brown; Nancy “trailer park” Grace’s new show — Swift Justice.

    J.T. you should be a technical advisor. The brand of law you celebrate is no better then what you see on any of the above shows.

    A police report certainly comes in as a business record. That includes the personal observations of the police officer. But without a witness or certification who laid the foundation. How do we know that this is the true police report. I have seen many police reports for the same accident. Yes I have. I did a whole investigation into that with IAB.

    “The whole world knows what it says” — give me a break. Brilliant legal argument J.T.

    “Listen your honor the whole world knows what it says.” Judge: “I admit it into evidence.” Poor Richardson vomiting in his grave.

    For goodness sake the law has always said the police report needs to be certified. A simple certification. We have come to what Judge Engel railed out about: As long as you attach something to an affirmation it magically become evidence.

    How stupid. You absolutely do not need a law degree to practice law anymore. In fact being a good lawyer is a hindrance because good lawyers would not make the arguments that courts routinely buy because good lawyers know the law so much better.

    I guess when you spend your life doing No Fault what you describe above can be classified at “tore apart.” I always thought tearing apart was reserved for witnesses under cross examination in big cases. First question of O.J.’s best DNA expert on cross:

    Q. You work for a pineapple company — don’t you
    Q. And your work has nothing to do with DNA — correct

    Not that it mattered because the jury wasn’t listening but that’s tearing apart.

  2. nycoolbreez says:

    This case is like Mark McGwire’s 70 home runs, impressive but not right

  3. slick says:

    It’s not a big deal. They didnt get rid of the denial because it had the correct name of the assignor at least.

    Further, they considered the inadmissible police report in opposition to P’s motion for summary judgment. However, they didnt award summary judgment to the Ps.

    • JT says:

      But they would have awarded SJ on it had it been an issue that to which the police report would have offered prima facie proof. You see this at the framed issue hearings on UM/SUM coverage all the time.

      It is also worth noting that inadmissible evidence is only sufficient to defeat a summary judgment motion when there has been a sufficient showing that admissible evidence could not have been obtained.

      Anyway, the appellate divisions seem to be moving away from the certification requirement. An example, although not on point with the above fact pattern, is Kingsbrook v. Allstate. It seems like judicial notice is given to anything that is somewhat related to a governmental entity or subdivision.

      When was the last time the Appellate Division struck a PAR because it was not certified? You will be looking for awhile.

  4. Larry Rogak says:

    First the AD said that the hospital established as a matter of law that the denial was untimely. In the next paragraph, they say Esurance raised a triable issue of fact as to the timeliness of the denial.

    If a law student wrote that in an essay he’d get a bad grade.

  5. raymond zuppa says:

    I will provide some law tomorrow. But I agree J.T. that there is a trend of doing away with the rules of evidence. The certification requirement was designed to do just that. No witness. Just get it stamped. Efficient. Save the trouble of the witness. Now they are getting rid of that too.

    What does a Judge do? No Stare Decisis. No bedrock principles. Make up their minds as they go along paying strict attention to the political winds.

    I would also note that as the above has happened our system of Justice has gotten worse; our freedoms have eroded; our economy has become a joke; and our culture has become a reality show joke.

    I guess the people of Rome must have felt — Raycious Ceasar Zuppa is going too far in his extrapolation.

    I submit to you my ancestor was correct and so am I. Welcome to the dying empire known as America. When your laws are not enforced or followed your time is limited.

  6. Raymond Zuppa says:

    Rule 4540 of the CPLR “Authentication of official record of court or government office in the United States” provides:

    (a) Copies permitted. An official publication, or a copy attested as correct by an officer or a deputy of an officer having legal custody of an official record of the United States or of any state, territory or jurisdiction of the United States, or of any of its courts, legislature, offices, public bodies or boards is prima facie evidence of such record.

    (b) Certificate of officer of the state. Where the copy is attested by an officer of the state, it shall be accompanied by a certificate signed by, or with a facsimile of the signature of, the clerk of a court having legal custody of the record, and, except where the copy is used in the same court or before one of its officers, with the seal of the court affixed; or signed by, or with a facsimile of the signature of, the officer having legal custody of the original, or his deputy or clerk, with his official seal affixed; or signed by, or with a facsimile of the signature of, the presiding officer, secretary or clerk of the public body or board and, except where it is certified by the clerk or secretary of either house of the legislature, with the seal of the body or board affixed. If the certificate is made by a county clerk, the county seal shall be affixed.

    I won’t put in any caselaw because it is superflous. The Second Department and every other Department as well as the Court of Appeals has absolutely no power to undo any provision of the CPLR unless they rule such to be unconstitutional.

    The CPLR emanates from the legislature which according to our own jurisprudence is “the embodiment of the People.”

    I am not wrong. Anyone who disagrees with me including the Courts are simply wrong.

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