| Mount Sinai Hosp. v Country Wide Ins. Co. |
| 2011 NY Slip Op 05680 [85 AD3d 1136] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Mount Sinai Hospital, as Assignee of Vanessa Ayala et al.,Respondents, v Country Wide Insurance Company,Appellant. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for respondents.
In an action to recover no-fault medical payments under two insurance policies, thedefendant appeals (1) from an order of the Supreme Court, Nassau County (Winslow, J.), enteredJuly 19, 2010, which granted the plaintiffs' motion for summary judgment on the complaint anddenied its cross motion for summary judgment, in effect, dismissing the complaint, and (2) aslimited by its brief, from so much of an order of the same court entered February 7, 2011, asdenied those branches of its motion which were for leave to renew its cross motion for summaryjudgment, in effect, dismissing the complaint and its opposition to the plaintiffs' motion forsummary judgment on the complaint.
Ordered that the order entered July 19, 2010, is modified, on the law, by deleting theprovision thereof granting the plaintiffs' motion for summary judgment on the complaint, andsubstituting therefor a provision denying the plaintiffs' motion; as so modified, the order enteredJuly 19, 2010, is affirmed, without costs or disbursements; and it is further,
Ordered that the appeal from so much of the order entered February 7, 2011, as denied thatbranch of the defendant's motion which was for leave to renew its opposition to the plaintiffs'motion for summary judgment is dismissed as academic, without costs or disbursements, in lightof our determination on the appeal from the order entered July 19, 2010; and it is further,
Ordered that the order entered February 7, 2011, is affirmed insofar as reviewed, withoutcosts or disbursements.
The plaintiffs made a prima facie showing of their entitlement to judgment as a matter of lawon their causes of action to recover no-fault insurance medical payments by submitting evidencethat the necessary billing documents had been mailed and received by the defendant insurer,which failed to either pay or deny the claims within the requisite 30-day period (seeInsurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d603, 604 [2011]; Westchester Med.Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]). However, in opposition,the defendant raised triable issues of fact with respect to whether the limits [*2]of the policy at issue in the first cause of action were exhaustedthrough the payment of claims for prior services during a time that the 30-day period was tolledpursuant to the defendant's request for additional verification (see 11 NYCRR 65-3.5 [b];65-3.8 [a] [1]; 65-3.15; Fair Price Med.Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Westchester Med. Ctr. v Hartford Cas. Ins.Co., 58 AD3d 832, 833 [2009]; Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d771, 771-772 [2006]), and whether the claim at issue in the second cause of action was paidby the defendant, with appropriate overdue interest, prior to the commencement of this action(see Insurance Law § 5106 [a]). Accordingly, the Supreme Court should havedenied the plaintiffs' motion for summary judgment on the complaint. Because of theaforementioned issues of fact, the Supreme Court properly denied the defendant's cross motionfor summary judgment, in effect, dismissing the complaint.
The Supreme Court also properly denied that branch of the defendant's motion which was forleave to renew its cross motion for summary judgment, in effect, dismissing the complaint, as thedefendant failed to offer a reasonable justification for its failure to submit the new facts at thetime of the prior motion (see CPLR 2221 [e] [3]; Matter of Leone Props., LLC v Board of Assessors for Town ofCornwall, 81 AD3d 649, 652 [2011]; Greene v New York City Hous. Auth., 283AD2d 458, 459 [2001]). Prudenti, P.J., Eng, Hall and Lott, JJ., concur.