| Lenox Hill Hosp. v Government Empls. Ins. Co. |
| 2011 NY Slip Op 08330 [89 AD3d 905] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Lenox Hill Hospital, as Assignee of Hector Jamie Robles, Appellant, etal., Plaintiff, v Government Employees Insurance Company,Respondent. |
—[*1] Teresa M. Spina, Woodbury, N.Y. (Jeanne M. Ortega and P. Stephanie Estevez of counsel), forrespondent.
In an action to recover payment of no fault benefits under a policy of automobile insurance, theplaintiff Lenox Hill Hospital, as assignee of Hector Jamie Robles, appeals from an order of the SupremeCourt, Nassau County (Mahon, J.), entered April 21, 2011, which denied its motion for summaryjudgment on the first cause of action.
Ordered that the order is affirmed, with costs.
Given the limited nature of the plaintiff's motion for summary judgment, which established theplaintiff's prima facie entitlement to judgment as a matter of law solely on the ground that the defendantdid not pay or deny the subject claim within 30 days (see 11 NYCRR 65-3.8 [c]), thedefendant's only burden in opposition to the motion was to raise a triable issue of fact regarding itstimely payment or denial of the claim (see e.g.Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d18, 24 [2011]). The defendant succeeded in raising such an issue of fact by submitting evidencethat it sent the plaintiff a denial of claim form within the 30-day time limit. Accordingly, the motion wasproperly denied without regard to the plaintiff's additional contention, improperly raised for the first timein its reply papers on the motion (seeDjoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825, 826 [2009]),that the medical reports upon which the defendant relied to establish the merits of its denial of the claimwere not in proper evidentiary form. Mastro, J.P., Chambers, Sgroi and Miller, JJ., concur.