January 29, 2014

Westchester Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 00500)

Headnote

The court in this case considered an action to recover no-fault benefits under a policy of automobile insurance. The plaintiff, Westchester Medical Center, as assignee of Arianna Thrasher, appealed from an order of the Supreme Court that denied its motion for summary judgment on its first cause of action. The court held that the plaintiff made a prima facie showing of entitlement to judgment by submitting evidence that the prescribed billing form was received by the respondent insurer and failed to pay or deny the claim within the requisite 30-day period. The court also held that the respondent failed to raise a triable issue of fact in opposition to the appellant's prima facie showing. The respondent's contention of a complete absence of coverage that could be asserted as a basis for disclaimer was deemed improper as it was raised for the first time on appeal. The court reversed the order, granting the plaintiff's motion for summary judgment on its first cause of action.

Reported in New York Official Reports at Westchester Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 00500)

Westchester Med. Ctr. v Government Empls. Ins. Co.

2014 NY Slip Op 00500 [113 AD3d 842]

January 29, 2014

Appellate Division, Second Department

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

As corrected through Wednesday, March 5, 2014

Westchester Medical Center, as Assignee of Arianna Thrasher, Appellant, et al., Plaintiffs,
v
Government Employees Insurance Company, Respondent.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Spina, Korshin & Welden, Woodbury, N.Y. (Jeanne M. Ortega and P. Stephanie Estevez of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff Westchester Medical Center, as assignee of Arianna Thrasher, appeals from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 23, 2012, as denied that branch of its motion which was for summary judgment on its first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the plaintiff Westchester Medical Center, as assignee of Arianna Thrasher, which was for summary judgment on its first cause of action is granted.

The plaintiff Westchester Medical Center, as assignee of Arianna Thrasher (hereinafter the appellant), made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence in admissible form that the prescribed statutory billing form had been mailed to and received by the respondent insurer, which failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306-1307 [2012]; Westchester Med. Ctr. v Lancer Ins. Co., 94 AD3d 984, 984 [2012]; NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136, 1137 [2011]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2009]).

Contrary to the Supreme Court’s determination, the respondent, in opposition to the appellant’s prima facie showing, failed to raise a triable issue of fact.

The respondent’s contention that there was a complete absence of coverage that could be asserted as a basis for disclaimer notwithstanding its failure to comply with the 30-day rule set forth in Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) (see generally Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Zappone v Home [*2]Ins. Co., 55 NY2d 131 [1982]), is improperly raised for the first time on appeal, and, therefore, is not properly before this Court.

In light of our determination, we need not reach the plaintiff’s remaining contentions. Mastro, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.