| Mount Sinai Hosp. v Chubb Group of Ins. Cos. |
| 2007 NY Slip Op 06650 [43 AD3d 889] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Mount Sinai Hospital, as Assignee of Sidney Weingarten,Respondent, et al., Plaintiffs, v Chubb Group of Insurance Companies, Also Known asChubb & Son, Inc., Appellant. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for respondent.
In an action to recover no-fault medical payments, the defendant appeals from so much of anorder of the Supreme Court, Nassau County (Feinman, J.), dated January 27, 2006, as granted themotion of the plaintiff Mount Sinai Hospital, as assignee of Sidney Weingarten, denominated asone for leave to renew and reargue, but which was, in actuality, one for leave to reargue, and,upon reargument, vacated so much of a prior order of the same court dated July 8, 2005, asdenied that plaintiff's motion for summary judgment on the first cause of action and granted thatplaintiff's motion.
Ordered that the order dated January 27, 2006 is reversed insofar as appealed from, on thelaw, with costs, the motion, denominated as one for leave to renew and reargue, but which was,in actuality, one for leave to reargue, is denied, so much of the order dated July 8, 2005, asdenied the motion of the plaintiff Mount Sinai Hospital, as assignee of Sidney Weingarten, forsummary judgment on the first cause of action is reinstated and, upon searching the record(see CPLR 3212 [b]), that branch of the defendant's cross motion which was for summaryjudgment dismissing the first cause of action is granted.[*2]
Pursuant to Insurance Law § 5106 (a) and 11NYCRR 65-3.5, an insurer is required to either pay or deny a claim for no-fault automobileinsurance benefits within 30 days from the date an applicant supplies proof of claim (seePresbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failureto pay benefits within the 30-day requirement renders the benefits overdue (see InsuranceLaw § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]). The 30-day period may be extended if within10 days from receipt of a completed application, an insurer demands additional verification of aclaim (see 11 NYCRR former 65.15 [d] [1]; [e]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493[2006]; New York & Presbyt. Hosp. vProgressive Cas. Ins. Co., 5 AD3d 568,569 [2004]). If the requested verification has notbeen supplied to the insurer within 30 days from the insurer's original request, the insurer shallissue a follow-up request within 10 days of the insured's failure to respond (see 11NYCRR former 65.15 [e] [2]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins.Co., 295 AD2d 583, 584 [2002]). "A claim need not be paid or denied until all demandedverification is provided" (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supraat 570, see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5 [c], 65-3.8 [a] [1];New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584[2002]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d553, 554 [1999]). "When a hospital fails to respond to a verification request, the 30-day period inwhich to pay or deny the claim does not begin to run, and any claim for payment by the hospitalis premature" (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra at 570).
Here, it is undisputed that the defendant made timely requests for additional information. Theplaintiff Mount Sinai Hospital, as assignee of Sidney Weingarten (hereinafter the plaintiff),claims that it sent the requested material on December 21, 2004, by certified mail, and that thematerial was received by the defendant the next day. Assuming that sufficient evidence existsthat the requested material was mailed (see Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981[2007]), the 30-day period within which the defendant was required to either pay or deny theclaim did not begin to run until December 22, 2004, the date the verification material wasallegedly received (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra at570), and did not expire until January 21, 2005. Since the plaintiff commenced its lawsuit by thefiling of a summons with notice and verified complaint on November 19, 2004, approximatelytwo months before the defendant was required to pay or deny the claim, the plaintiff's action wasbrought prematurely and the defendant was entitled to summary judgment dismissing theplaintiff's first cause of action (seeCentral Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).This Court may award this relief even though the defendant did not appeal from the originalorder denying that branch of its cross motion which was for summary judgment dismissing thefirst cause of action (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106,110 [1984]; Wolf v Atai, 139 AD2d 729,731 [1988]).
The defendant's remaining argument, regarding a protective order, has been renderedacademic. Crane, J.P., Goldstein, Dillon and Carni, JJ., concur.