Opinion
2012-05-30
WESTCHESTER MEDICAL CENTER, as assignee of Shaheen Akhtar, appellant, v. HEREFORD INSURANCE COMPANY, respondent.
Joseph Henig, P.C., Bellmore, N.Y., for appellant. Lawrence R. Miles, Long Island City, N.Y., for respondent.
Joseph Henig, P.C., Bellmore, N.Y., for appellant. Lawrence R. Miles, Long Island City, N.Y., for respondent.
In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), entered September 1, 2011, as denied its motion for summary judgment on the complaint.
ORDERED that the order is reversed insofar as appealed from, 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 entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing form had been mailed to and received by the defendant 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]; 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).
In opposition to the plaintiff's motion, the defendant failed to raise a triable issue of fact. A presumption of receipt was created by the certified mail receipt and the signed return receipt card, such that the defendant's mere denial of receipt was insufficient to raise a triable issue of fact ( see New York & Presbyt. Hosp. v. Countrywide Ins. Co., 44 A.D.3d 729, 730–731, 843 N.Y.S.2d 662;Westchester Med. Ctr. v. Liberty Mut. Ins. Co., 40 A.D.3d 981, 982–983, 837 N.Y.S.2d 210). Further, the defendant's failure to respond to the no-fault billing within the requisite 30–day period precluded it from raising the defenses that it was not provided with timely notice of the underlying motor vehicle accident or proof of claim ( see Bayside Rehab. & Physical Therapy P.C. v. GEICO Ins. Co., 24 Misc.3d 542, 545, 876 N.Y.S.2d 850;Rockman v. Clarendon Natl. Ins. Co., 21 Misc.3d 1118[A], 2008 N.Y. Slip Op. 52093[U], 2008 WL 4647718 [Civ. Ct. Richmond County 2008]; Vincent Med. Servs., P.C. v. New York Cent. Mut. Fire Ins. Co., 21 Misc.3d 142[A], 2008 N.Y. Slip Op. 52442[U], 2008 WL 5147035 [App. Tm. 2d Dept. 2008] ). Finally, although the defense of lack of coverage is not precluded by the defendant's failure to pay or deny the subject no-fault claim within the requisite 30–day period ( see Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 N.Y.3d 312, 318, 849 N.Y.S.2d 473, 879 N.E.2d 1291;Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199, 659 N.Y.S.2d 246, 681 N.E.2d 413), here, the defendant's submissions were insufficient to raise triable issues of fact with respect to a lack of coverage defense ( see Mercury Cas. Co. v. Encare, Inc., 90 A.D.3d 475, 934 N.Y.S.2d 390;D.S. Chiropractic, P.C. v. Country–Wide Ins. Co., 24 Misc.3d 138[A], 2009 N.Y. Slip Op. 51584[U], 2009 WL 2177815 [App. Tm. 2d Dept. 2009] ). Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint.