| New York & Presbyt. Hosp. v Countrywide Ins. Co. |
| 2007 NY Slip Op 07675 [44 AD3d 729] |
| October 9, 2007 |
| Appellate Division, Second Department |
| New York and Presbyterian Hospital, Plaintiff, and New YorkHospital Medical Center of Queens, Respondent, v Countrywide Insurance Company,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 (Robbins, J.), entered June 30, 2006,which granted the motion of the plaintiff New York Hospital Medical Center of Queens forsummary judgment on the second and third causes of action, and (2) a judgment of the samecourt entered July 11, 2006, which is in favor of the plaintiff New York Hospital Medical Centerof Queens and against it in the principal sum of $6,223.62.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the order entered June 30, 2006, ismodified by deleting the provision thereof granting that branch of the motion of the plaintiff NewYork Hospital Medical Center of Queens which was for summary judgment on the second causeof action, and substituting therefor a provision denying that branch of the motion, and the matteris remitted to the Supreme Court, Nassau County, for entry of an appropriate amended judgment;and it is further,
Ordered that one bill of costs is awarded to the appellant.[*2]
The appeal from the intermediate order must bedismissed because the right of direct appeal therefrom terminated with the entry of judgment inthe action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appealfrom the order are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
The plaintiff New York Hospital Medical Center of Queens (hereinafter the plaintiff)established, prima facie, its entitlement to judgment as a matter of law with respect to the secondcause of action by demonstrating that the necessary billing documents were mailed to andreceived by the defendant and that payment of the no-fault benefits was overdue (seeInsurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743[2004]). However, in opposition to the motion, the defendant submitted admissible evidencewhich raised triable issues of fact as to the date on which the plaintiff mailed the no-fault claimsto the defendant and whether the verification requests, which would serve to extend thedefendant's time within which to pay or deny the claim, were pending. Contrary to the SupremeCourt's determination, the defendant's request for additional verification tolled the defendant'stime within which to pay or deny the claim (see Insurance Law § 5106 [a]; 11NYCRR 65-3.8 [a] [1], [2]) until it received all of the relevant information requested (see Nyack Hosp. v General MotorsAcceptance Corp., 27 AD3d 96, 100 [2005], mod 8 NY3d 294 [2007]).Moreover, the affidavit and documentary evidence submitted by the defendant were in admissibleform since the affiant stated her basis for knowledge of the facts and laid a proper foundation forintroduction of the documents (see Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771, 772 [2006]). Thus, the Supreme Court should have denied summary judgment asto the second cause of action.
The evidence submitted by the plaintiff in support of that branch of its motion which was forsummary judgment on the third cause of action satisfied its burden of establishing, prima facie,its entitlement to judgment as a matter of law (see Insurance Law § 5106 [a]; 11NYCRR 65-3.8 [a] [1]; MaryImmaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]). While thedefendant initially denied that the plaintiff provided it with the requested verification material, itfailed to rebut the plaintiff's showing that the verification material was actually mailed to thedefendant. A presumption of receipt was created by the certified mail receipt and the signedreturn receipt card, each bearing a notation to the relevant medical records, such that thedefendant's denial of receipt of the verification material was insufficient to raise a triable issue offact (see Westchester Med. Ctr. vLiberty Mut. Ins. Co., 40 AD3d 981, 982 [2007]; Matter of Fodor v MBNA Am. Bank, N.A., 34 AD3d 473[2006]).
Motion by the respondent on appeals from an order of the Supreme Court, NassauCounty, entered June 30, 2006, and a judgment of the same court entered July 11, 2006, to strikepages 18 through 20 of the appellant's brief on the ground that it improperly raises arguments forthe first time on appeal. By decision and order on motion of this Court dated May 31, 2007, themotion was held in abeyance and referred to the panel of Justices hearing the appeals fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is denied. Schmidt, J.P., Santucci, Florio and Dillon, JJ., concur.