| Westchester Med. Ctr. v Progressive Cas. Ins. Co. |
| 2011 NY Slip Op 08747 [89 AD3d 1081] |
| November 29, 2011 |
| Appellate Division, Second Department |
| Westchester Medical Center, as Assignee of Gregoria Young and Others,Respondent, v Progressive Casualty Insurance Company, RespondentAppellant. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for respondent.
In an action to recover no-fault medical payments under certain policies of automobile insurance,the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, NassauCounty (Brandveen, J.), entered May 19, 2010, as, upon reargument, vacated the determination in anorder of the same court dated August 19, 2009, denying the plaintiff's motion for summary judgment onthe complaint, and thereupon granted the plaintiff's motion for summary judgment on the complaint.
Ordered that the order entered May 19, 2010, is modified, on the law, by deleting the provisionsthereof, upon reargument, vacating the determination in the order dated August 19, 2009, denyingthose branches of the plaintiff's motion which were for summary judgment on the first and third causesof action, and thereupon granting those branches of the motion, and substituting therefor a provision,upon reargument, adhering to the determination in the order dated August 19, 2009, denying thosebranches of the motion; as so modified, the order entered May 19, 2010, is affirmed insofar asappealed from, without costs or disbursements.
In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement tojudgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing formswere mailed to and received by the relevant insurance carrier, and that payment of no-fault benefits wasoverdue (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997];New York & Presbyt. Hosp. v Selective Ins.Co. of Am., 43 AD3d 1019 [2007]). No-fault benefits are overdue if not paid within 30 daysafter the insurer receives proof of claims, including verification of all relevant information requested(see 11 NYCRR 65-3.5, 65-3.8 [a]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d1019 [2007]).
With respect to the first cause of action, in which the plaintiff sought benefits as assignee ofGregoria Young, the plaintiff made a prima facie showing that it had mailed the prescribed statutorybilling form to the defendant, and did not receive payment within the requisite 30-day period. Inopposition to that showing, however, the defendant insurer submitted proof that it timely issued a denialof this claim. Inasmuch as the plaintiff sought summary judgment only on the basis that the defendantfailed to timely pay or deny the claim, the Supreme Court, upon [*2]reargument, should have adhered to its prior determination denyingsummary judgment to the plaintiff on this cause of action without regard to the merits of the defendant'sdenial of the claim (see Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905 [2dDept 2011]; Westchester Med. Ctr. vClarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d18, 24 [2011]).
With respect to the second cause of action, in which the plaintiff sought benefits as assignee ofLoicyra Bulado, also known as Loicyra Almeda, the plaintiff offered proof that it had mailed theprescribed statutory billing form and did not receive payment therefor within 30 days after complyingwith the defendant's verification requests (see Presbyterian Hosp. in City of N.Y. v Maryland Cas.Co., 90 NY2d 274 [1997]). In opposition thereto, the defendant failed to raise a triable issue offact. Accordingly, upon reargument, the plaintiff was properly awarded summary judgment on thesecond cause of action (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
With respect to the third cause of action, in which the plaintiff sought benefits as assignee ofAnthony Prunella, the plaintiff submitted proof that it did not receive payment of its claim within 30 daysafter submission thereof to the defendant. However, in opposition thereto, the defendant establishedthat it timely requested verification of this claim, and that it paid the claim within 30 days after receipt ofthe requested verification (see 11 NYCRR 65-3.5 [b]; see also New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d1019 [2007]; Mount Sinai Hosp. vChubb Group of Ins. Cos., 43 AD3d 889 [2007]). Accordingly, upon reargument, theSupreme Court should have adhered to its prior determination denying that branch of the plaintiff'smotion which was for summary judgment on the third cause of action. Prudenti, P.J., Skelos, Balkinand Sgroi, JJ., concur.