| New York Hosp. Med. Ctr. of Queens v QBE Ins.Corp. |
| 2014 NY Slip Op 00639 [114 AD3d 648] |
| February 5, 2014 |
| Appellate Division, Second Department |
| New York Hospital Medical Center of Queens, as Assigneeof Khushi Robinson, et al., Respondents, v QBE Insurance Corporation,Appellant. |
—[*1] Joseph Henig, P.C., Bellmore, N.Y., for respondents.
In an action to recover no-fault benefits under two separate policies of automobileinsurance, the defendant appeals from a judgment of the Supreme Court, Nassau County(Winslow, J.), entered October 13, 2011, which, upon an order of the same court enteredAugust 2, 2011, granting the plaintiffs' motion for summary judgment on the complaintand denying its cross motion, inter alia, for summary judgment dismissing the complaint,is in favor of the plaintiffs and against it in the sum of $66,682.29.
Ordered that the judgment is modified, on the law, by deleting the provision thereof,in effect, awarding the plaintiffs damages in the sum of $7,354.28 on the first cause ofaction and substituting therefor a provision dismissing that cause of action; as somodified, the judgment is affirmed, without costs or disbursements, that branch of theplaintiffs' motion which was for summary judgment on the first cause of action is denied,that branch of the defendant's cross motion which was for summary judgment dismissingthat cause of action is granted, the order entered August 2, 2011, is modified accordingly,and the matter is remitted to the Supreme Court, Nassau County, for the entry of anappropriate amended judgment.
The plaintiffs made a prima facie showing of entitlement to judgment as a matter oflaw on the second cause of action, which related to the claim submitted by WestchesterMedical Center in connection with the injuries allegedly sustained by its assignor, Robertde los Santos, by submitting evidence that the prescribed statutory billing form had beenmailed to and received by the defendant insurer, which failed to either pay or deny theclaims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. vCountry-Wide Ins. Co., 114 AD3d 33, 2013 NY Slip Op 08430 [2d Dept 2013]; Westchester Med. Ctr. v HerefordIns. Co., 95 AD3d 1306, 1306-1307 [2012]; Westchester Med. Ctr. v Lancer Ins. Co., 94 AD3d 984,984 [2012]; Westchester Med.Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082 [2011]). A medicalprovider is not required, as part of its prima facie showing, to demonstrate theadmissibility of its billing records or to prove the truth of their content under the businessrecords exception to the hearsay rule (see CPLR 4518 [a]; Viviane [*2]Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 45 [2013]). In opposition to the plaintiffs' showing in connection with thesecond cause of action, the defendant failed to raise a triable issue of fact as to whether itproperly requested further verification of that claim (see Westchester Med. Ctr. vProgressive Cas. Ins. Co., 89 AD3d at 1083; Mount Sinai Hosp. v TriboroCoach, 263 AD2d 11 [1999]). By failing to timely contest, at the claims stage, theadequacy of the claim forms employed by Westchester Medical Center to establish proofof the claim it submitted on behalf of de los Santos, the defendant waived its right to relyon any deficiencies in those forms at the litigation stage (see Fair Price Med. Supply Corp. vTravelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases vTravelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]; Viviane EtienneMed. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013]). Similarly, on its cross motion for summary judgment, thedefendant failed to establish, prima facie, that it properly requested verification of thatclaim (see Westchester Med.Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676 [2007]). Accordingly,the Supreme Court properly granted that branch of the plaintiffs' motion which was forsummary judgment on the second cause of action and properly denied that branch of thedefendant's cross motion which was for summary judgment dismissing the second causeof action (see Westchester Med.Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 754 [2007]).
In connection with that branch of its cross motion which was for summary judgmentdismissing the first cause of action, however, the defendant established, prima facie, thatpayment on the claim made by the plaintiff New York Hospital Medical Center ofQueens on behalf of its assignor, Khushi Robinson, was not overdue since there wereverification requests that remained outstanding with respect to that claim (see New York & Presbyt. Hosp. vAllstate Ins. Co., 30 AD3d 492, 493 [2006]). In opposition, the plaintiffs failedto raise a triable issue of fact (see id.). Specifically, the defendant submittedevidence that it timely and properly requested further verification of that claim and timelyand properly followed up on that request, but that New York Hospital Medical Center ofQueens did not respond (seeWestchester Med. Ctr. v Country Wide Ins. Co., 84 AD3d 790, 791 [2011]; St. Barnabas Hosp. v American Tr.Ins. Co., 57 AD3d 517, 518 [2008]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d729, 730 [2007]). Accordingly, the Supreme Court should have denied that branchof the plaintiffs' motion which was for summary judgment on the first cause of action,and granted that branch of the defendant's cross motion which was for summaryjudgment dismissing that cause of action. Balkin, J.P., Roman, Sgroi and Cohen, JJ.,concur.