| Westchester Med. Ctr. v Clarendon Natl. Ins. Co. |
| 2008 NY Slip Op 09786 [57 AD3d 659] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mWestchester Medical Center, as Assignee of Josh Logan and EdwardCaruso, Respondent, v Clarendon National Insurance Company,Appellant. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for respondent.
In an action to recover no-fault medical payments under insurance contracts, the defendantappeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County(Brandveen, J.), dated December 3, 2007, as granted that branch of the plaintiff's motion which was forsummary judgment on the first cause of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiff's motion which was for summary judgment on the first cause of action is denied.
The plaintiff, as assignee of two insureds under policies issued by the defendant, commenced thisaction to recover no-fault medical payments. The plaintiff moved for summary judgment on thecomplaint, arguing that the defendant had failed to timely pay or deny the claim of either insured underthe relevant no-fault regulations (see 11 NYCRR 65-1.1 et seq.). The defendantthereafter paid the claim of Edward Caruso (the subject of the second cause of action) and madepartial payment on the claim of Josh Logan (the subject of the first cause of action). In the orderappealed from, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was forsummary judgment on the first cause of action regarding Logan's claim. We reverse the order insofar asappealed from.
The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the [*2]first cause of action regarding Logan's claim with evidence that the claimwas neither paid nor denied within 30 days of the defendant's receipt of the prescribed claim forms (see Westchester Med. Ctr. v Progressive Cas.Ins. Co., 51 AD3d 1014 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750[2007]; 11 NYCRR 65-3.8 [a] [1], [c]). However, in opposition, the defendant raised a triable issue offact as to whether it timely and properly denied the claim based on Logan's alleged intoxication at thetime of the accident by issuance of a denial of coverage on that ground within 30 days of the receipt ofadditional verification it requested concerning the claim (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014[2008]; Westchester Med. Ctr. v State FarmMut. Auto. Ins. Co., 44 AD3d 750 [2007]; 11 NYCRR 65-3.5; 11 NYCRR 65-3.8 [e],[g]). Thus, that branch of the plaintiff's motion which was for summary judgment on the first cause ofaction should have been denied.
The plaintiff's remaining contention is without merit. Ritter, J.P., Florio, Miller and Carni, JJ.,concur.