| Mercury Cas. Co. v Encare, Inc. |
| 2011 NY Slip Op 08969 [90 AD3d 475] |
| Dcmbr 13, 2011 |
| Appellate Division, First Department |
| Mercury Casualty Co., Appellant, v Encare, Inc., asAssignee of Robert Manley, Respondent. |
—[*1] Werner, Zaroff, Slotnick, Stern & Ashkenazy LLP, Lynbrook (Howard J. Stern of counsel),for respondent.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 18, 2011,which granted defendant's motion to dismiss the complaint for failure to state a claim and deniedplaintiff's cross motion for partial summary judgment, unanimously affirmed, without costs.
The trial court properly dismissed the complaint on the ground that a no-fault insurer whoissues the denial of a claim in an untimely or otherwise defective manner is prohibited fromchallenging the claim (see Insurance Law § 5106; 11 NYCRR 65-3.8 [c];Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).
We are unpersuaded by Mercury's effort to fit this case within the narrow exception fordenials based on lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos.,90 NY2d 195 [1997]). Central General Hospital and its progeny address situations inwhich "[the] lack of coverage defense [is] premised on the fact or founded belief that the allegedinjury does not arise out of an insured incident" (90 NY2d at 199).
Nor do we find it significant, in light of the genesis and purposes of the preclusion rule, thatInsurance Law § 5108 prohibits a medical provider from seeking fees in excess of the feeschedule. Virtually every application of the preclusion rule involves the compromise of statute,policy provision, or judge-made rule in service of effectuating the important purposes of theNo-[*2]Fault Law. The expansion of the lack of coverageexception proposed by Mercury would substantially weaken the long-established rule ofpreclusion.
Accordingly, the trial court's order is affirmed. Concur—Gonzalez, P.J., Friedman,Moskowitz, Acosta and Richter, JJ. [Prior Case History: 2011 NY Slip Op 32166(U).]