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St. Barnabas Hospital v. American Transit Insurance Co.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 2, 2008

ST. BARNABAS HOSPITAL, AS ASSIGNEE OF MIGUEL JIMENEZ, ET AL., RESPONDENTS,
v.
AMERICAN TRANSIT INSURANCE COMPANY, APPELLANT.

In an action to recover no-fault medical payments under insurance contracts, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated January 28, 2008, as granted that branch of the motion of the plaintiff St. Barnabas Hospital, as assignee of Miguel Jimenez, which was for summary judgment on the first cause of action and denied that branch of its cross motion which was for summary judgment dismissing the first cause of action.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, STEVEN W. FISHER and RANDALL T. ENG, JJ.

(Index No. 7014/07)

DECISION & ORDER

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the plaintiff St. Barnabas Hospital, as assignee of Miguel Jimenez, which was for summary judgment on the first cause of action and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff St. Barnabas Hospital, as assignee of Miguel Jimenez (hereinafter the Hospital), made a prima facie showing of entitlement to judgment as a matter of law on the first cause of action to recover no-fault benefits by demonstrating that the prescribed statutory billing forms were mailed to and received by the defendant and that payment was overdue (see Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481; Hospital For Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 904; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730).

However, in opposition, the defendant raised a triable issue of fact as to whether the Hospital timely complied with the demand for verification (see Mount Sinai Hosp. v Allstate Ins. Co., 25 AD3d 673, 674). The defendant was not obligated to pay or deny the claim until all demanded verification was provided by the Hospital (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 100-101, mod on other grounds 8 NY3d 294; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493).

Accordingly, the Supreme Court correctly denied that branch of the defendant's cross motion which was for summary judgment dismissing the first cause of action, but should not have granted that branch of the Hospital's motion which was for summary judgment on the first cause of action.

MASTRO, J.P., RIVERA, FISHER and ENG, JJ., concur.

20081202

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