| Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co. |
| 2007 NY Slip Op 07690 [44 AD3d 750] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Westchester Medical Center, as Assignee of Donald Gjelaj,Appellant, v State Farm Mutual Automobile Insurance Company,Respondent. |
—[*1] Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), forrespondent.
In an action to recover no-fault benefits under an insurance contract, the plaintiff appealsfrom so much of an order of the Supreme Court, Nassau County (LaMarca, J.), dated January 5,2007, as denied that branch of its motion which was for summary judgment on the first cause ofaction and granted that branch of the defendant's cross motion which was for summary judgmentdismissing that cause of action.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's cross motion which was for summary judgment dismissing the firstcause of action and substituting therefor a provision denying that branch of the cross motion; asso modified, the order is affirmed insofar as appealed from, without costs or disbursements.
On or about January 29, 2006, Donald Gjelaj, the plaintiff's assignor, was involved in asingle-vehicle accident on a wet, curved roadway. After the accident, Gjelaj was arrested fordriving while intoxicated. Gjelaj sought no-fault benefits under a policy of insurance issued bythe defendant. The defendant sent a verification request dated January 31, 2006, to Gjelaj seekingadditional information regarding his alleged intoxication. On or about February 10, 2006, Gjelajresponded to the request, including with his response copies of the traffic ticket issued after theaccident charging him with driving while intoxicated and Gjelaj's handwritten statement that hehad "not gone to court yet" on the charge. On or about February 16, 2006, the defendant receiveda copy of the police accident report indicating that Gjelaj was arrested for driving whileintoxicated at the [*2]scene of the accident. Within one weekafter receiving Gjelaj's response, the defendant sought additional verification regarding Gjelaj'sintoxication from, among others, Arden Hill Hospital, where Gjelaj had been taken after theaccident.
In the interim, on or about February 24, 2006, the defendant received a hospital facility form(NYS Form NF-5) from the plaintiff to recover no-fault benefits for services it rendered toGjelaj, its assignor. By letters dated March 8, 2006, and April 11, 2006, the defendant advisedthe plaintiff that it was investigating the claim for possible intoxication and waiting fortoxicology reports from either Arden or the New York State Police (hereinafter the State Police).On April 19, 2006, the defendant received, by facsimile from Gjelaj's counsel, a copy of a bloodalcohol test (hereinafter the BAC report) taken by the State Police which stated in the subject lineGjelaj's name and the date of the accident, and reported a blood alcohol level of 0.13. Thedefendant sent the plaintiff a denial of claim on the ground of intoxication dated April 24, 2006.
When a denial of no-fault benefits rests on the statutory exclusion of intoxication pursuant toInsurance Law § 5103 (b) (2), the regulations promulgated thereunder trigger certaintiming and notification requirements that extend the 30-day statutory period within which aninsurer must pay or deny a claim (see Insurance Law § 5106 [a]; 11 NYCRRformer 65.15 [g] [3]). "[W]hen an insurer believes that intoxication may have been a contributingcause to an accident, the insurer is entitled to all available information regarding the insured'scondition at the time of the accident" (Presbyterian Hosp. in City of N.Y. v Maryland Cas.Co., 90 NY2d 274, 279 [1997], citing 11 NYCRR former 65.15 [g] [7]). Pursuant to 11NYCRR former 65.15 (g) (7), proof of a claim shall not be complete until the information whichhas been requested pursuant thereto has been furnished to the insurer by the applicant or theauthorized representative.
"Within 10 business days after receipt of the completed application for motor vehicleno-fault benefits . . . or other substantially equivalent written notice, the insurershall forward, to the parties required to complete them, those prescribed verification forms it willrequire prior to payment of the initial claims" (11 NYCRR 65-3.5 [a]). "Subsequent to the receiptof one or more of the completed verification forms, any additional verification required by theinsurer to establish proof of claim shall be requested within 15 business days of receipt of theprescribed verification forms" (11 NYCRR 65-3.5 [b]). "The insurer is entitled to receive allitems necessary to verify the claim directly from the parties from whom such verification wasrequested" (11 NYCRR 65-3.5 [c]).
The plaintiff made a prima facie showing of entitlement to summary judgment on its firstcause of action to recover no-fault benefits by demonstrating that the prescribed statutory billingforms were mailed to and received by the defendant and that payment of no-fault benefits wasoverdue (see Nyack Hosp. vMetropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). In opposition, however, thedefendant raised a triable issue of fact that the verification requests seeking informationregarding Gjelaj's alleged intoxication were timely and properly sent to, among others, Gjelaj, theplaintiff's assignor (see Nyack Hosp. vState Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]; 11 NYCRR 65-3.5 [a], [b];former 65.15 [g] [7]).
In addition, the defendant raised a triable issue of fact through its submission of the policeaccident report (hereinafter the PAR) that Gjelaj was intoxicated at the time of the accident andthat such intoxication caused the accident. The PAR was properly considered by the SupremeCourt under the business record exception to the hearsay rule to the extent that it was based uponthe [*3]personal observations of the police officer present at thescene and under a business duty to make it (see CPLR 4518 [a]; Yeargans vYeargans, 24 AD2d 280, 282 [1965]). Based upon the police officer's personal observationsand knowledge, Gjelaj's vehicle left the roadway and struck a tree, and Gjelaj was arrested fordriving while intoxicated. Thus, the Supreme Court properly denied the plaintiff's motion forsummary judgment.
However, the defendant failed to make out a prima facie showing on its cross motion forsummary judgment (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]). In the first instance, the defendant was unable to establish, prima facie, that Gjelaj wasintoxicated at the time of the accident (see Lynch v Progressive Ins. Co., 12 AD3d 570, 571 [2004]). Theresult of a blood alcohol test may be admitted on the issue of intoxication in litigation involvingan exclusion in a no-fault policy provided that a proper foundation is laid (see Matter ofNyack Hosp. v Government Empls. Ins. Co., 139 AD2d 515 [1988]). At bar, the defendantfailed to lay a proper foundation for admission of the BAC report by proffering any evidenceregarding the care in the collection of Gjelaj's blood sample and its analysis (see Marigliano vCity of New York, 196 AD2d 533 [1993]; Fafinski v Reliance Ins. Co., 106 AD2d88, 91-92 [1985], affd 65 NY2d 990 [1985]). Thus, while the defendant raised a triableissue of fact regarding intoxication sufficient to defeat the plaintiff's motion, on this record, itcannot establish intoxication as a matter of law. We note in this regard that although the BACreport was inadmissible to establish the defendant's prima facie case on its cross motion (see generally Beyer v Melgar, 16 AD3d532, 533 [2005]), the Supreme Court properly considered it in opposition to the plaintiff'smotion (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Phillips v Kantor& Co., 31 NY2d 307 [1972]).
In addition, the defendant failed to establish, prima facie, that Gjelaj's alleged intoxicationwas the proximate cause of the accident (see Lynch v Progressive Ins. Co., 12 AD3d 570, 571 [2004];Scahall v Unigard Ins. Co., 222 AD2d 1070, 1071 [1995]; North v Travelers Ins. Co.,218 AD2d 901, 902 [1995]; Cernik v Sentry Ins., 131 AD2d 952 [1987]). Since thedefendant failed to make a prima facie showing, the Supreme Court should have denied thatbranch of the defendant's cross motion which was for summary judgment dismissing the firstcause of action regardless of the sufficiency of the plaintiff's opposing papers (see North vTravelers Ins. Co., 218 AD2d 901 [1995]; see generally Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). Schmidt, J.P., Santucci, Skelos and Balkin, JJ.,concur.