Westchester Med. Ctr. v Hereford Ins. Co., 2012 NY Slip Op 04156 (2d Dept. 2012)
I found this case interesting, not for the proposition of law that it represented, but based upon the case citations.
The underlying premise is that the 30-day written notice of claim requirement is a precludable condition precedent to coverage. The road that was taken to re-articulate this point was interesting.
“the defendant’s failure to respond to the no-fault billing within the requisite 30-day period precluded it from raising the defenses that it was not provided with timely notice of the underlying motor vehicle accident or proof of claim (see Bayside Rehab & Physical Therapy P.C. v GEICO Ins. Co., 24 Misc 3d 542, 545 (LEVINE J.); Rockman v Clarendon Natl. Ins. Co., 21 Misc 3d 1118[A], 2008 NY Slip Op 52093[U] [Civ Ct Richmond County 2008] (LEVINE, J.); Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52442[U] [App Tm 2d Dept 2008]).”
“Finally, although the defense of lack of coverage is not precluded by the defendant’s failure to pay or deny the subject no-fault claim within the requisite 30-day period (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d [*2]312, 318; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199), here, the defendant’s submissions were insufficient to raise triable issues of fact with respect to a lack of coverage defense (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475; D.S. Chiropractic, P.C. v. Country-Wide Ins. Co., 24 Misc 3d 138[A], 2009 NY Slip Op 51584[U] [App Tm 2d Dept 2009]).”
It is remarkable that the App. Div. 2nd Dept. cited to 1) Civil Court; 2) App. Term 2d Dept; and 3) Inapplicable 1st Dept case law in order to reach the conclusion that it did.
I am waiting to see if the First Department will expand Unitrin to include 30-day failure to give proper written notice of claim cases. I am actually more interested to see what the upstate Appellate Divisions have to say about all of this. Since the upstate court calendars move quickly, we may know rather soon what the Fourth Department has to say…
