| NYU-Hospital for Joint Diseases v American Intl. Group, Inc. |
| 2011 NY Slip Op 04437 [84 AD3d 1192] |
| May 24, 2011 |
| Appellate Division, Second Department |
| NYU-Hospital for Joint Diseases, as Assignee of FranciscoRomero, et al., Appellants-Respondents, v American International Group, Inc.,Respondent-Appellant. |
—[*1] Bryan M. Rothenberg, Hicksville, N.Y. (Argyria A.N. Kehagias of counsel), forrespondent-appellant.
In an action to recover no-fault medical payments under insurance contracts, the plaintiffsappeal from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), enteredMarch 30, 2010, as denied that branch of their motion which was for summary judgment on thethird cause of action, and the defendant cross-appeals from so much of the same order as deniedits cross motion for summary judgment dismissing the third cause of action.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the plaintiffs' motion which was for summary judgment on the third cause of actionand substituting therefor a provision granting that branch of the motion; as so modified, the orderis affirmed insofar as appealed from, with costs.
The plaintiffs made a prima facie showing that the plaintiff Westchester Medical Center(hereinafter the hospital) was entitled to judgment as a matter of law on the third cause of actionto recover no-fault insurance medical payments by submitting evidence that the prescribedstatutory billing form had been mailed and received by the defendant insurer, which failed toeither pay or deny the claim within the requisite 30-day period (see Insurance Law§ 5106 [a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60AD3d 1045, 1045-1046 [2009]; Westchester Med. Ctr. v Progressive Cas. Ins. Co. 51AD3d 1014, 1017 [2008]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43AD3d 1019, 1020 [2007]).
In opposition, the insurer failed to raise a triable issue of fact as to whether it had timelydenied the claim. Contrary to the insurer's contention, its letter to the hospital stating thatpayment of the claim was delayed "pending adjuster's review" and "investigation" did not serveto toll the 30-day statutory period (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60AD3d at 1046; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2005]), and, inany event, was not a timely request for verification made within 10 business days after theinsurer's receipt of the hospital's claim (see 11 NYCRR 65-3.5 [a]).[*2]
Failure to establish timely denial of the claim results inpreclusion of the defense that the intoxication of the insured was a contributing cause of theaccident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. vMaryland Cas. Co., 90 NY2d 274, 286 [1997]; Westchester Med. Ctr. v New York Cent.Mut. Fire Ins. Co., 81 AD3d 929, 930 [2011]). Accordingly, the Supreme Court should havegranted that branch of the hospital's motion which was for summary judgment on the third causeof action. Rivera, J.P., Skelos, Florio and Austin, JJ., concur. [Prior Case History: 2010 NYSlip Op 30730(U).]
[Recalled and vacated, see 89 AD3d 702.]