| Westchester Med. Ctr. v Progressive Cas. Ins. Co. |
| 2008 NY Slip Op 04867 [51 AD3d 1014] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Westchester Medical Center, as Assignee of Michael Forthmuller,Appellant, et al., Plaintiffs, v Progressive Casualty Insurance Company,Respondent. |
—[*1] D'Ambrosio & D'Ambrosio, P.C., Irvington, N.Y. (John P. D'Ambrosio of counsel), forrespondent.
Motion by the respondent for leave to reargue an appeal from an order of the Supreme Court,Nassau County (Galasso, J.), dated April 5, 2007, which was determined by decision and order ofthis Court dated December 11, 2007, or, in the alternative, for leave to appeal to the Court ofAppeals from the decision and order of this Court.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the branch of the motion which is for leave to reargue is granted; and it isfurther,
Ordered that the motion is otherwise denied; and it is further,
Ordered that upon reargument, the decision and order of this Court dated December 11, 2007(see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 46 AD3d 675 [2007]), is recalledand vacated, and the following decision and order is substituted therefor:[*2]
In an action to recover no-fault medical payments underinsurance contracts, the plaintiff appeals from an order of the Supreme Court, Nassau County(Galasso, J.), dated April 5, 2007, which denied its motion for summary judgment on its firstcause of action, and conditionally granted the defendant's cross motion for summary judgmentdismissing the first cause of action. Presiding Justice Prudenti has been substituted for formerJustice Goldstein (see 22 NYCRR 670.1 [c]).
Ordered that the order is modified, on the law, by deleting the provision thereof conditionallygranting the defendant's cross motion for summary judgment dismissing the first cause of actionand substituting therefor a provision denying the cross motion; as so modified, the order isaffirmed, without costs or disbursements.
On March 24, 2006 Michael Forthmuller was seriously injured when he lost control of hisvehicle and crashed into a telephone pole. Immediately after the accident, Forthmuller wastransported to Sound Shore Medical Center (hereinafter Sound Shore), where he underwentemergency surgery. Forthmuller was then transferred to the plaintiff hospital, where he remainedhospitalized for approximately one month.
On or about May 4, 2006, the plaintiff, as Forthmuller's assignor, sent the defendant, interalia, a hospital facility form (NYS Form N-F5) seeking payment of its hospital bill. Thedefendant received the hospital facility form on May 8, 2006. Three days later, on May 11, 2006,the defendant sent the plaintiff a letter indicating that benefits remained delayed pending receiptof Forthmuller's medical records, which had been previously requested. The defendant allegesthat after it received the plaintiff's medical records on May 15, 2006, it learned that Forthmullerhad first been treated after the accident at Sound Shore. Accordingly, on May 20, 2006, thedefendant sent Sound Shore a verification request seeking its medical records pertaining toForthmuller's treatment, including any blood alcohol serum toxicology test results. The defendantreceived Sound Shore's medical records on June 29, 2006 and on July 12, 2006 it denied theplaintiff's claim upon the ground that Forthmuller was driving while intoxicated at the time of theaccident.
Prior to receiving the defendant's denial of the claim, the plaintiff commenced this actionseeking, in its first cause of action, to recover payment for the medical services provided toForthmuller, as well as statutory interest and an attorney's fee. The plaintiff thereafter moved forsummary judgment on its first cause of action, contending that no-fault benefits were overduebecause the defendant had failed to either pay or deny its claim within 30 days as required byInsurance Law § 5106 (a) and 11 NYCRR 65-3.2. The defendant cross-moved forsummary judgment dismissing the first cause of action, arguing that the 30-day period in whichto pay or deny the claim was not triggered until it received the Sound Shore records it hadrequested as verification. The defendant also relied upon laboratory results contained in anuncertified copy of Sound Shore's medical records as proof that Forthmuller was legallyintoxicated at the time of the accident. The Supreme Court denied the plaintiff's motion forsummary judgment, and conditionally granted the hospital's cross motion pending receipt of "acertified toxicology report from Sound Shore."
"When a denial of no-fault benefits rests on the statutory exclusion of intoxication pursuantto Insurance 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" (Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co.,44 AD3d 750, 752 [2007]; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co.,90 NY2d 274, 279 [1997]). In this regard, 11 [*3]NYCRR65-3.8 (g) provides that "if an insurer has reason to believe that the applicant was operating amotor vehicle while intoxicated or impaired by the use of a drug, and such intoxication orimpairment was a contributing cause of the automobile accident, the insurer shall be entitled toall available information relating to the applicant's condition at the time of the accident." Thisprovision also states that proof of a claim shall not be complete until the information which hasbeen requested pursuant thereto has been furnished by the insurer. Furthermore, pursuant to 11NYCRR 65-3.5 (c), "the insurer is entitled to receive all items necessary to verify the claimdirectly from the parties from whom such verification was requested."
Here, the plaintiff made a prima facie showing of its entitlement to judgment as a matter oflaw on its first cause of action by submitting, inter alia, the requisite no-fault billing forms, acertified mail receipt referencing the patient, a signed return receipt card also referencing thepatient, and the affidavit of its biller averring that the defendant failed to either pay the bill orissue a timely denial of claim form (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins.Co., 44 AD3d 750 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40AD3d 984 [2007]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39AD3d 832 [2007]; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d683 [2007]). In opposition to the motion, however, the defendant raised a triable issue of fact asto whether it timely denied the claim by submitting evidence that a verification request seekinginformation regarding Forthmuller's alleged intoxication was timely and properly sent to SoundShore (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750[2007]; cf. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274[1997]).
In addition, the defendant also raised a triable issue of fact as to whether Forthmuller wasintoxicated at the time of the accident and whether his intoxication caused the accident bysubmission of the Sound Shore laboratory results and a police accident report. Although theSouth Shore records were not in admissible form because they were not certified (seeCPLR 4518 [c]; see generally Abbas v Cole, 7 AD3d 649 [2004]; Jajoute v NewYork City Health & Hosps. Corp., 242 AD2d 674, 676 [1997]; Dudek v Sinisi, 199AD2d 800, 801 [1993]; cf. Rodriguez v Triborough Bridge & Tunnel Auth., 276 AD2d769, 772 [2000]; Cleary v City of New York, 234 AD2d 411 [1996]; Maxcy v Countyof Putnam, 178 AD2d 729, 730 [1991]; LaDuke v State Farm Ins. Co., 158 AD2d137, 138 [1990]; Tinao v City of New York, 112 AD2d 363 [1985]), under thecircumstances of this case, the Supreme Court properly considered this evidence in conjunctionwith the police accident report describing the circumstances of the accident, in opposition to theplaintiff's motion (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d750 [2007]; see generally Phillips v Kantor & Co., 31 NY2d 307 [1972]). In addition, thepolice accident report describing the circumstances of the accident was properly considered to theextent that it was based upon the personal observations of the police officer present at the sceneand who was under a business duty to make it (see CPLR 4518 [a]; Westchester Med.Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]).
However, the Supreme Court should not have conditionally granted the defendant's crossmotion pending receipt of a certified toxicology report from South Shore. A blood alcohol testresult, as set forth in a certified hospital record, constitutes prima facie evidence of the test resultpursuant to CPLR 4518 (c) (see Rodriguez v Triborough Bridge & Tunnel Auth., 276AD2d 769 [2000]; Martin v City of New York, 275 AD2d 351, 355 [2000]; Cleary vCity of New York, 234 AD2d 411 [1996]; Maxcy v County of Putnam, 178 AD2d729, 730 [1991]; LaDuke v State Farm Ins. Co., 158 AD2d 137, 138 [1990]; Tinao vCity of New York, 112 AD2d 363 [1985]). Thus, the blood alcohol test results contained in acertified hospital record from Sound Shore would be sufficient to make a prima facie showingthat Forthmuller was intoxicated at the time of the accident (see Rodriguez v TriboroughBridge & [*4]Tunnel Auth., 276 AD2d 769 [2000]).However, since the defendant also failed to make out a prima facie showing that Forthmuller'salleged intoxication was the proximate cause of the accident (see Westchester Med. Ctr. vState Farm Mut. Auto. Ins. Co., 44 AD3d 750, 753-754 [2007]; Lynch v Progressive Ins.Co., 12 AD3d 570, 571 [2004]; Scahall v Unigard Ins. Co., 222 AD2d 1070, 1071[1995]; Cernik v Sentry Ins., 131 AD2d 952, 953 [1987]), its cross motion should havebeen denied regardless of the sufficiency of the plaintiff's opposition papers (see generallyWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Prudenti, J.P., Skelos,Fisher and Dillon, JJ., concur.