| Mount Sinai Hosp. v Government Empls. Ins. Co. |
| 2011 NY Slip Op 05679 [85 AD3d 1135] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Mount Sinai Hospital, as Assignee of Meilun Chun, et al.,Plaintiffs, and New York and Presbyterian Hospital, as Assignee of Gregory Berkley,Respondent, v Government Employees Insurance Company,Appellant. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for respondent.
In an action to recover no-fault medical payments under certain insurance policies, thedefendant appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered June29, 2010, which granted the motion of the plaintiff New York and Presbyterian Hospital, asassignee of Gregory Berkley, for summary judgment on the fourth cause of action.
Ordered that the order is reversed, on the law, with costs, and the motion of the plaintiff NewYork and Presbyterian Hospital, as assignee of Gregory Berkley, for summary judgment on itsfourth cause of action is denied.
The plaintiff New York and Presbyterian Hospital, as assignee of Gregory Berkley(hereinafter the hospital), made a prima facie showing of entitlement to judgment as a matter oflaw with respect to the fourth cause of action to recover no-fault medical payments bydemonstrating that the necessary billing forms had been mailed to and received by the defendantand that the defendant had failed to either pay or deny the claim within the requisite 30-dayperiod (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; Hospital for Joint Diseases v TravelersProp. Cas. Ins. Co., 9 NY3d 312, 317-318 [2007]; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d929 [2011]; Westchester Med. Ctr.v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]).
However, in opposition, the defendant raised a triable issue of fact as to whether it issued adenial of claim form dated April 2, 2008, to the hospital (see NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d1190 [2011]; St. Vincent's Hosp. ofRichmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]). Accordingly,the Supreme Court should have denied the hospital's motion for summary judgment on its fourthcause of action. Rivera, J.P., Eng, Roman and Miller, JJ., concur.