| Westchester Med. Ctr. v Country Wide Ins. Co. |
| 2011 NY Slip Op 03838 [84 AD3d 790] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Westchester Medical Center, as Assignee of Chris Kang, et al.,Appellants, v Country Wide Insurance Company,Respondent. |
—[*1] Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), forrespondent.
In an action to recover no-fault benefits under a contract of insurance, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy,J.), entered October 1, 2010, as denied the motion of the plaintiff New York Hospital MedicalCenter of Queens, as assignee of Merna Ishak, for summary judgment on the second cause ofaction.
Ordered that the appeal by the plaintiff Westchester Medical Center, as assignee of ChrisKang, is dismissed, without costs or disbursements, as that plaintiff is not aggrieved by theportion of the order appealed from (see CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as appealed from by the plaintiff New YorkHospital Medical Center of Queens, as assignee of Merna Ishak; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak(hereinafter the plaintiff), established, prima facie, its entitlement to judgment as a matter of lawon the second cause of action by demonstrating that the necessary billing forms were mailed toand received by the defendant and that payment of no-fault benefits was overdue (seeInsurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Wyckoff Hgts. Med. Ctr. v Country-WideIns. Co., 71 AD3d 1009, 1010 [2010], lv granted 15 NY3d 709 [2010]; New York & Presbyt. Hosp. v CountrywideIns. Co., 44 AD3d 729, 730 [2007]). However, in opposition, the defendant raised atriable issue of fact as to whether the plaintiff fully complied with the defendant's demand forverification (see St. Barnabas Hosp. vAmerican Tr. Ins. Co., 57 AD3d 517, 518 [2008]; Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 [2008]; 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 plaintiff (see St. Barnabas Hosp. v AmericanTr. Ins. Co., 57 AD3d at 518). Accordingly, the Supreme Court properly denied theplaintiff's motion for summary judgment on the second cause of action. Dillon, J.P., Covello, Engand Chambers, JJ., concur.