ST BARNABAS HOSPITAL v. AMERICAN TRANSIT INSURANCE COMPANY (2008)

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.

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 A.D.3d 481, 859 N.Y.S.2d 567;  Hospital For Joint Diseases v. New York Cent. Mut. Fire Ins. Co., 44 A.D.3d 903, 904, 844 N.Y.S.2d 371;  New York & Presbyt. Hosp. v. Countrywide Ins. Co., 44 A.D.3d 729, 730, 843 N.Y.S.2d 662).

 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 A.D.3d 673, 674, 811 N.Y.S.2d 726).   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 A.D.3d 512, 513, 818 N.Y.S.2d 583;  Nyack Hosp. v. General Motors Acceptance Corp., 27 A.D.3d 96, 100-101, 808 N.Y.S.2d 399, mod. on other grounds 8 N.Y.3d 294, 832 N.Y.S.2d 880, 864 N.E.2d 1279;  Central Suffolk Hosp. v. New York Cent. Mut. Fire Ins. Co., 24 A.D.3d 492, 493, 807 N.Y.S.2d 382).

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.