Mount Sinai Hosp. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 51423(U))

Supreme Court, Nassau County

020352/10

Plaintiffs Attorney:

Joseph Henig, P.C.

516-785-3116

Defendants Attorney:

Bruno, Gerbino & Soriano, LLP

631-390-0010

F. Dana Winslow, J.

The motion of plaintiff NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS (“NY HOSPITAL”) a/a/o DOLLY RAHIMA a/k/a BEBE JEBO KHAIRULLAH (“KHAIRULLAH”) for summary judgment pursuant to CPLR §3212 is determined as follows. All other claims in this matter have been settled.

This is an action pursuant to Insurance Law §5106 to compel payment of a no-fault bill. Plaintiff NY HOSPITAL is the assignee for health services rendered to DOLLY RAHIMA a/k/a BEBE JEBO KHAIRULLAH (“KHAIRULLAH”) during the period from August 4, 2010 through August 9, 2010 arising out of an automobile accident [*2]that occurred on August 4, 2010. On August 24, 2010, NY HOSPITAL sent to the defendant a Hospital Facility Form (Form N-F 5) and a UB-04, constituting its claim for payment of a hospital bill in the amount of $12,991.42. Defendant received the claim on August 27, 2010. It is undisputed that NY HOSPITAL mailed and that defendant received the hospital facility form and uniform billing form within the statutory time frame.

NY HOSPITAL moves for summary judgment pursuant to CPLR §3212 in the sum of $12,991.42 upon the ground that defendant is precluded from interposing a defense because of its failure to pay or issue a timely denial of the claim. See Presbyterian Hospital in the City of NY v. Maryland Casualty Co., 90 NY2d 274; Montefiore Medical Center v. New York Central Mutual Fire Insurance Co., 9 AD3d 354. In support of its motion, NY HOSPITAL proffers an affidavit of Peter Kattis, employed by a third party biller and account representative for NY HOSPITAL, sworn to on January 6, 2011, attesting to personal knowledge of mailing of the billing forms to defendant and the receipt by defendant on specific dates. NY HOSPITAL also submits copies of the bills and signed return receipt requested receipts demonstrating that defendant received same. It is undisputed that NY HOSPITAL mailed and that defendant received the hospital facility form and uniform billing form within the statutory time frame.

An insurer is required to either pay or deny a claim within thirty (30) calendar days after proof of the claim is received. 11 NYCRR 65-3.8 (a)(1). NY HOSPITAL asserts that defendant has neither paid nor issued a timely denial of the claim and as a result is precluded from interposing a defense. Presbyterian Hospital in the City of New York v. Maryland Casualty Co., supra. It is undisputed that defendant issued a denial on October 28, 2010, beyond the time prescribed by the applicable regulations. The Court finds NY HOSPITAL made a prima facie showing of entitlement to judgment as a matter of law with respect to its claim by establishing that defendant received the requisite no fault billing forms and that neither payment nor a timely denial was made.

In opposition, defendant claims that investigation of the accident reveals that the losses claimed were not caused by the accident but rather were the result of intentional acts. In support, defendant proffers the affidavit of Bill Wynne, Special Investigative Unit Investigator, employed by defendant, sworn to on February 15, 2011 (the “Wynne Affidavit”). The Wynne Affidavit concludes that upon his investigation, including review of documents in defendant’s file, KHAIRULLAH was not involved in a covered accident. Defendant argues that KHAIRULLAH’s injuries are unrelated to the accident, and as such, its denial is based on lack of coverage rather than a denial based on exclusion from coverage. Central General Hospital v. Chubb Group of Insurance Cos., 90 [*3]NY2d 195. Despite NY HOSPITAL’s arguments to the contrary, the Court finds that the Wynne Affidavit constitutes evidentiary proof in admissible form.

An “insurer [is] not subject to preclusion in the lack of coverage situation where there never was any insurance in effect.’ ” Presbyterian Hospital in the City of NY v. Maryland Casualty Co., supra, at 283 quoting Zappone v. Home Insurance Co., 55 NY2d 131 at 138. Accordingly, even when an insurer fails to reject a claim within the thirty day period mandated by 11 NYCRR 65-3.8, the insurer “may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident.” Central General Hospital v. Chubb Group of Insurance Cos., supra at 199. See Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 42 AD3d 277.

The term “accident” is broadly defined, and is construed according to the meaning understood by the average person. See Agoado Realty Corp. et al. v. United International Insurance Co., 95 NY2d 141. In deciding whether an injury is the result of a covered accident in the context of an alleged intentional tort precluding coverage under the policy, the Court finds that it is relevant to determine whether the incident was the result of reflective or reflexive actions from the insured’s perspective. There can be no accident when the injuries were the expected or the anticipated result of the alleged conduct and thereby a reflective action. In circumstances, however, where injuries were caused by a reflexive action on the part of the insured, the injuries sustained do not “flow directly and immediately from an intended act” and would be considered an accident. Cf. Allstate Fire & Cas. Co. v. Torio, 250 AD2d 833, 834 (citing Continental Ins. Co. v. Colangione, 107 AD2d 978, 979).

In the case at bar, based on the deposition testimony ofKHAIRULLAH, particularly her testimony that she saw blood on her hand, unhooked her seat belt, was frightened and started to panic and wanted to be out of the car, the Court finds that her actions were reflexive and therefore arose out of a motor vehicle accident. Such reflexive actions were sufficiently unexpected, unusual or unforeseen as to warrant a determination that they arose from an accident and did not “flow directly and immediately from an intended act.” Allstate Fire & Cas. Co. v. Torio, supra.

Based on the foregoing, it is

ORDERED, that the motion of plaintiff NEW YORK HOSPITAL a/a/o DOLLY RAHIMA a/k/a BEBE JEBO KHAIRULLAH (“KHAIRULLAH”) for summary judgment pursuant to CPLR §3212 is granted.

This constitutes the Order of the Court. [*4]

Dated:June 24, 2011______________________

J.S.C.