Opinion
2014-01-29
WESTCHESTER MEDICAL CENTER, as assignee of Arianna Thrasher, appellant, et al., plaintiffs, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, respondent.
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.
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 A.D.3d 33, 977 N.Y.S.2d 292, 2013 N.Y. Slip Op. 08430 [2d Dept.2013]; Westchester Med. Ctr. v. Hereford Ins. Co., 95 A.D.3d 1306, 1306–1307, 944 N.Y.S.2d 900; Westchester Med. Ctr. v. Lancer Ins. Co., 94 A.D.3d 984, 984, 942 N.Y.S.2d 373; NYU–Hosp. for Joint Diseases v. American Intl. Group, Inc., 89 A.D.3d 702, 703, 936 N.Y.S.2d 548; Mount Sinai Hosp. v. Country Wide Ins. Co., 85 A.D.3d 1136, 1137, 926 N.Y.S.2d 306; Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 60 A.D.3d 1045, 1045–1046, 877 N.Y.S.2d 340).
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 N.Y.3d 556, 860 N.Y.S.2d 471, 890 N.E.2d 233; Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 660 N.Y.S.2d 536, 683 N.E.2d 1; Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 659 N.Y.S.2d 246, 681 N.E.2d 413; Zappone v. Home Ins. Co., 55 N.Y.2d 131, 447 N.Y.S.2d 911, 432 N.E.2d 783), 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.