Opinion
2014-02-5
WESTCHESTER MEDICAL CENTER, as assignee of Christine Tachaud, appellant, v. ALLSTATE INSURANCE COMPANY, respondent.
Joseph Henig, P.C., Bellmore, N.Y., for appellant. McDonnell & Adels, PLLC, Garden City, N.Y. (Jannine A. Gordineer of counsel), for respondent.
Joseph Henig, P.C., Bellmore, N.Y., for appellant. McDonnell & Adels, PLLC, Garden City, N.Y. (Jannine A. Gordineer of counsel), for respondent.
In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.) dated September 6, 2012, which denied its motion for summary judgment on the complaint.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the complaint is granted.
The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by “demonstrating that the necessary billing documents were mailed to, and received by, [the defendant insurer] and that payment of no-fault benefits was overdue” (Sound Shore Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 106 A.D.3d 157, 164–165, 963 N.Y.S.2d 282; seeInsurance Law § 5106[a]; 11 NYCRR 65–3.8[c]; 11 NYCRR 65–3.8[a][1][c]; Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 114 A.D.3d 33, 977 N.Y.S.2d 292, 2013 N.Y. Slip Op. 08430 [2d Dept.2013] ), since “the prescribed statutory billing form had been mailed to and received by the defendant insurer, which failed either to pay or deny the claim within the requisite 30–day period” (Westchester Med. Ctr. v. Hereford Ins. Co., 95 A.D.3d 1306, 1306, 944 N.Y.S.2d 900; see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 114 A.D.3d 33, 977 N.Y.S.2d 292, 2013 N.Y. Slip Op. 08430 [2d Dept.2013] ). Contrary to the defendant's contention, the papers submitted in support of the plaintiff's motion were in sufficient evidentiary form to warrant the granting of summary judgment in favor of the plaintiff ( see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 114 A.D.3d 33, 977 N.Y.S.2d 292, 2013 N.Y. Slip Op. 08430 [2d Dept.2013] ).
In opposition, the defendant failed to raise a triable issue of fact. The defendant acknowledged that it received the billing form on November 4, 2011. Neither the letter that the defendant describes as a request for a verification, dated December 6, 2011, nor its later denial of claim form dated December 20, 2011, was sent within the 30–day post-receipt-of-claim period ( see id.; Sound Shore Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 106 A.D.3d at 164, 963 N.Y.S.2d 282; see also 11 NYCRR 65–3.5[b]; Nyack Hosp. v. General Motors Acceptance Corp., 8 N.Y.3d 294, 300–301, 832 N.Y.S.2d 880, 864 N.E.2d 1279).
Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint. MASTRO, J.P., DICKERSON, CHAMBERS and ROMAN, JJ., concur.