| 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 |
| New York and Presbyterian Hospital,Respondent, v Selective Insurance Company of America,Appellant. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for respondent.
In an action to recover no-fault benefits under an insurance contract, the defendant appealsfrom (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 crossmotion for summary judgment dismissing the complaint, and (2) a judgment of the same courtentered November 2, 2006, which, upon the order, is in favor of the plaintiff and against it in theprincipal 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 appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand 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 ofentitlement to judgment as a matter of law by submitting evidentiary proof that the prescribedstatutory billing forms were mailed and received and that payment of no-fault benefits wasoverdue (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274[1997]; Nyack Hosp. v MetropolitanProp. & Cas. Ins. Co., 16 AD3d 564 [2005]). 11 NYCRR 65-3.8 (a) provides thatno-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 11NYCRR 65-3.5.
The plaintiff hospital made a prima facie showing on its summary judgment motion that ithad mailed the prescribed statutory billing form and did not receive payment in 30 days. Inopposition, the defendant insurer failed to raise a triable issue of fact. Specifically, the defendantfailed 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 herautomobile 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]). Theaffidavit of its medical expert was conclusory, speculative, and unsupported by the evidence.Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgmenton the complaint.
The defendant's remaining contention is without merit. Spolzino, J.P., Skelos, Lifson andBalkin, JJ., concur.