| NYU-Hospital for Joint Diseases v Esurance Ins. Co. |
| 2011 NY Slip Op 04436 [84 AD3d 1190] |
| May 24, 2011 |
| Appellate Division, Second Department |
| NYU-Hospital for Joint Diseases, as Assignee of Gudrun Cancian,Appellant, v Esurance Insurance Company, Respondent. |
—[*1] Rossillo & Licata, LLP, Westbury, N.Y. (John J. Rossillo of counsel), forrespondent.
In an action to recover no-fault medical payments under an insurance contract, the plaintiff,NYU-Hospital for Joint Diseases, as assignee of Gudrun Cancian, appeals from an order of theSupreme Court, Nassau County (McCarty III, J.), entered September 3, 2009, which denied itsmotion for summary judgment on the complaint.
Ordered that the order is affirmed, with costs.
On August 2, 2008, Gudrun Cancian was hospitalized at NYU-Hospital for Joint Diseases(hereinafter the hospital) after being injured in an automobile accident. She had been driving avehicle insured by the defendant, Esurance Insurance Company (hereinafter Esurance). OnSeptember 5, 2008, the hospital, as Cancian's assignee, mailed, among other things, an NF-5form to Esurance, seeking payment of Cancian's hospital bill. Esurance issued a denial of claim,which incorrectly stated the amount of the claim and the amount in dispute. Esurance denied theclaim, inter alia, because Cancian allegedly was intoxicated at the time of the accident.
The hospital then commenced this action seeking payment of its bill, and moved forsummary judgment on the complaint arguing, among other things, that the denial of claim wasuntimely, fatally defective for the above-mentioned mistakes, and that Esurance's defense thatCancian was intoxicated was unsupported by the evidence.
"A proper denial of [a] claim [for no-fault benefits] must include the information called forin the prescribed denial of claim form (see 11 NYCRR 65-3.4 [c] [11]) and must'promptly apprise the claimant with a high degree of specificity of the ground or grounds onwhich the disclaimer is predicated' " (St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d996, 996 [2009], quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664,664 [2004]). A timely denial of a no-fault insurance medical claim alone does not, however,avoid preclusion where the "denial is factually insufficient, conclusory, vague or otherwiseinvolves a defense which has no merit as a matter of law" (Nyack Hosp. v State Farm Mut.Auto. Ins. Co., 11 AD3d at 665).
Here, the hospital established its prima facie entitlement to judgment as a matter of law [*2]based on the untimeliness of the denial of claim. It submittedevidentiary proof that the prescribed statutory billing forms were mailed and received, and thatpayment of no-fault benefits was overdue (see St. Vincent's Hosp. of Richmond vGovernment Empls. Ins. Co., 50 AD3d 1123 [2008]; Westchester Med. Ctr. v State FarmMut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]; Nyack Hosp. v Metropolitan Prop. &Cas. Ins. Co., 16 AD3d 564 [2005]).
In opposition to the motion, however, Esurance raised a triable issue of fact as to whether thedenial of claim was timely issued by submitting the affidavit of an employee with knowledge ofits "standard office practices or procedures designed to ensure that items were properly addressedand mailed" (St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3dat 1124), wherein he attested that a denial of claim was timely issued to the hospital. We notethat while the denial of claim contained errors, they were not significant by themselves, and didnot pose any possibility of confusion or prejudice to the hospital under the circumstances; thus,the denial was not rendered a nullity (see St. Barnabas Hosp. v Penrac, Inc., 79 AD3d733, 734 [2010]; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77AD3d 737, 738 [2010]).
Further, Esurance raised a triable issue of fact as to whether Cancian was "injured as a resultof operating a motor vehicle while in an intoxicated condition" (Insurance Law § 5103 [b][2]). Contrary to the hospital's contention, the personal observations of the police officer presentat the scene of the accident as recorded in the police accident report were properly considered bythe Supreme Court under the business record exception to the hearsay rule (see CPLR 4518 [a];Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 753).
Accordingly, the Supreme Court properly denied the hospital's motion for summaryjudgment on the complaint. Prudenti, P.J., Angiolillo, Dickerson and Roman, JJ., concur.