| Westchester Med. Ctr. v Hereford Ins. Co. |
| 2012 NY Slip Op 04156 [95 AD3d 1306] |
| May 30, 2012 |
| Appellate Division, Second Department |
| Westchester Medical Center, as Assignee of Shaheen Akhtar,Appellant, v Hereford Insurance Company, Respondent. |
—[*1] Lawrence R. Miles, Long Island City, N.Y., for respondent.
In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals, aslimited by its notice of appeal and brief, from so much of an order of the Supreme Court, NassauCounty (Sher, J.), entered September 1, 2011, as denied its motion for summary judgment on thecomplaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theplaintiff's motion for summary judgment on the complaint is granted.
The plaintiff made a prima facie showing of entitlement to judgment as a matter of law bysubmitting evidence that the prescribed statutory billing form had been mailed to and received bythe defendant insurer, which failed to either pay or deny the claim within the requisite 30-dayperiod (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; NYU-Hosp. for Joint Diseases v AmericanIntl. Group, Inc., 89 AD3d 702, 703 [2011]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136, 1137[2011]; Westchester Med. Ctr. v LincolnGen. Ins. Co., 60 AD3d 1045, 1045-1046 [2009]).
In opposition to the plaintiff's motion, the defendant failed to raise a triable issue of fact. Apresumption of receipt was created by the certified mail receipt and the signed return receiptcard, such that the defendant's mere denial of receipt was insufficient to raise a triable issue offact (see New York & Presbyt. Hosp. vCountrywide Ins. Co., 44 AD3d 729, 730-731 [2007]; Westchester Med. Ctr. v Liberty Mut. Ins.Co., 40 AD3d 981, 982-983 [2007]). Further, the defendant's failure to respond to theno-fault billing within the requisite 30-day period precluded it from raising the defenses that itwas not provided with timely notice of the underlying motor vehicle accident or proof of claim(see Bayside Rehab & Physical Therapy,P.C. v GEICO Ins. Co., 24 Misc 3d 542, 545 [2009]; Rockman v Clarendon Natl.Ins. Co., 21 Misc 3d 1118[A], 2008 NY Slip Op 52093[U] [Civ Ct, Richmond County2008]; Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d142[A], 2008 NY Slip Op 52442[U] [App Term, 2d Dept 2008]). Finally, although the defenseof lack of coverage is not precluded by the defendant's failure to pay or deny the subject no-faultclaim within the requisite 30-day period (see Hospital for Joint Diseases v Travelers Prop.Cas. Ins. Co., 9 NY3d [*2]312, 318 [2007]; Central Gen.Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), here, the defendant'ssubmissions were insufficient to raise triable issues of fact with respect to a lack of coveragedefense (see Mercury Cas. Co. v Encare,Inc., 90 AD3d 475 [2011]; D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 24Misc 3d 138[A], 2009 NY Slip Op 51584[U] [App Term, 2d Dept 2009]). Accordingly, theSupreme Court should have granted the plaintiff's motion for summary judgment on thecomplaint. Rivera, J.P., Belen, Sgroi and Miller, JJ., concur. [Prior Case History: 2011 NYSlip Op 32398(U).]