| Westchester Med. Ctr. v Allstate Ins. Co. |
| 2007 NY Slip Op 08447 [45 AD3d 579] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Westchester Medical Center, as Assignee of Rifene Durandisse,Appellant, v Allstate Insurance Company, Respondent. |
—[*1] Stern & Montana, LLP, New York, N.Y. (Richard Montana of counsel), forrespondent.
In an action to recover no-fault medical payments under a certain insurance contract, theplaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated March30, 2007, which denied its motion for summary judgment on the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff contended, in its motion for summary judgment on the complaint, that it maileda single "NF-5" claim form dated March 8, 2006, to the defendant, that such form was receivedby the defendant on March 9, 2006 and that an "NF-10" denial of claim form dated March 23,2006, issued by the defendant in response, was not sufficiently specific to constitute a validdenial (see generally New York Univ.Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458 [2006]; see also Nyack Hosp. v State Farm Mut.Auto. Ins. Co., 11 AD3d 664 [2004]). The plaintiff further argued that the defendant,having failed to serve a sufficient "NF-10" denial of claim form within the critical 30-daypost-receipt-of-claim period, should be precluded from denying the claim (see generallyPresbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; St. Vincent's Hosp. & Med. Ctr. vNationwide Mut. Ins. Co., 42 AD3d 523 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984[2007]).
We agree with the Supreme Court that the plaintiff's moving papers failed to establish thatthe "NF-10" denial of claim form was so vague or deficient as to not qualify as a proper responseunder 11 NYCRR 65-3.4 (c) (11). Moreover, the "NF-10" denial of claim form was issued within30 [*2]days as required by Insurance Law § 5106 (a) and11 NYCRR 65-3.8 (c) (1) (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co.,90 NY2d at 278; St. Vincent's Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42AD3d at 524). Accordingly, the plaintiff failed to establish, prima facie, its entitlement tosummary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), and weneed not reach the sufficiency of the defendant's opposing papers (see Ayotte v Gervasio,81 NY2d 1062 [1993]).
In light of our determination, we decline to take judicial notice of certain diagnostic codescontained on the "UB-92" form.
Motion by the appellant on an appeal from an order of the Supreme Court, Nassau County,dated March 30, 2007, to strike the respondent's brief on the ground that it raises issues whichwere not raised before the Supreme Court, Nassau County. By decision and order on motion ofthis Court dated September 5, 2007, the motion was referred to the bench hearing the appeal fordetermination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and theargument of the appeal, it is
Ordered that the motion is denied. Lifson, J.P., Dillon, Covello and McCarthy, JJ., concur.