September 18, 2007

New York & Presbyt. Hosp. v Selective Ins. Co. of Am. (2007 NY Slip Op 06848)

Headnote

The case involved an action to recover no-fault benefits under an insurance contract. The plaintiff, a hospital, filed a complaint against the defendant insurance company seeking payment for overdue benefits. The defendant appealed from an order granting the plaintiff's motion for summary judgment and from a judgment in favor of the plaintiff. The issue before the court was whether the plaintiff had made a prima facie showing of entitlement to judgment as a matter of law under the statutory billing forms and whether the defendant insurer had raised a triable issue of fact in opposition. The court held that the plaintiff had made a prima facie showing by submitting evidentiary proof that the forms were mailed and payment was not received within 30 days, and that the defendant failed to raise a triable issue of fact in opposition. Therefore, the court affirmed the judgment in favor of the plaintiff.

Reported in New York Official Reports at New York & Presbyt. Hosp. v Selective Ins. Co. of Am. (2007 NY Slip Op 06848)

New York & Presbyt. Hosp. v Selective Ins. Co. of Am.

2007 NY Slip Op 06848 [43 AD3d 1019]

September 18, 2007

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, November 7, 2007

New York and Presbyterian Hospital, Respondent,
v
Selective Insurance Company of America, Appellant.

—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Rosa Maria Patrone of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Lally, J.), entered October 3, 2006, which granted the plaintiff’s motion for summary judgment on the complaint and denied its cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered November 2, 2006, which, upon the order, is in favor of the plaintiff and against it in the principal sum of $27,532.36.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been [*2]considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits was overdue (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). 11 NYCRR 65-3.8 (a) provides that no-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, which shall include verification of all of the relevant information requested pursuant to 11 NYCRR 65-3.5.

The plaintiff hospital made a prima facie showing on its summary judgment motion that it had mailed the prescribed statutory billing form and did not receive payment in 30 days. In opposition, the defendant insurer failed to raise a triable issue of fact. Specifically, the defendant failed to come forward with proof in admissible form to demonstrate ” ‘the fact’ or the evidentiary ‘found[ation for its] belief’ that the patient’s treated condition was unrelated to his or her automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [1999], quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]). The affidavit of its medical expert was conclusory, speculative, and unsupported by the evidence. Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the complaint.

The defendant’s remaining contention is without merit. Spolzino, J.P., Skelos, Lifson and Balkin, JJ., concur.