| St. Barnabas Hosp. v American Tr. Ins. Co. |
| 2008 NY Slip Op 09585 [57 AD3d 517] |
| December 2, 2008 |
| Appellate Division, Second Department |
| St. Barnabas Hospital, as Assignee of Miguel Jimenez, et al.,Respondents, v American Transit Insurance Company,Appellant. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for respondents.
In an action to recover no-fault medical payments under insurance contracts, the defendant appealsfrom so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated January 28, 2008,as granted that branch of the motion of the plaintiff St. Barnabas Hospital, as assignee of MiguelJimenez, which was for summary judgment on the first cause of action and denied that branch of itscross motion which was for summary judgment dismissing the first cause of action.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the plaintiff St. Barnabas Hospital, as assignee of Miguel Jimenez, which wasfor summary judgment on the first cause of action and substituting therefor a provision denying thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiff St. Barnabas Hospital, as assignee of Miguel Jimenez (hereinafter the Hospital), madea prima facie showing of entitlement to judgment as a matter of law on the first cause of action torecover no-fault benefits by demonstrating that the prescribed statutory billing forms were mailed to andreceived by the defendant and that payment was overdue (see Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 [2008];Hospital for Joint Diseases v New YorkCent. Mut. Fire Ins. Co., 44 AD3d 903, 904 [2007]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729,730 [2007]).[*2]
However, in opposition, the defendant raised a triable issue offact as to whether the Hospital timely complied with the demand for verification (see Mount Sinai Hosp. v Allstate Ins. Co.,25 AD3d 673, 674 [2006]). The defendant was not obligated to pay or deny the claim untilall demanded verification was provided by the Hospital (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513[2006]; Nyack Hosp. v General MotorsAcceptance Corp., 27 AD3d 96, 100-101 [2005], mod on other grounds 8 NY3d294 [2007]; Central Suffolk Hosp. v NewYork Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).
Accordingly, the Supreme Court correctly denied that branch of the defendant's cross motionwhich was for summary judgment dismissing the first cause of action, but should not have granted thatbranch of the Hospital's motion which was for summary judgment on the first cause of action. Mastro,J.P., Rivera, Fisher and Eng, JJ., concur.