WESTCHESTER MEDICAL CENTER v. ALLSTATE INSURANCE COMPANY (2007)

In an action to recover no-fault medical payments under a certain insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated March 30, 2007, which denied its motion for summary judgment on the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff contended, in its motion for summary judgment on the complaint, that it mailed a single “NF-5” claim form dated March 8, 2006, to the defendant, that such form was received by the defendant on March 9, 2006, and that an “NF-10” denial of claim form dated March 23, 2006, issued by the defendant in response, was not sufficiently specific to constitute a valid denial (see generally New York Univ. Hosp. Rusk Inst. v. Hartford Acc. & Indem. Co., 32 A.D.3d 458, 820 N.Y.S.2d 309;  see also Nyack Hosp. v. State Farm Mut. Auto. Ins. Co., 11 A.D.3d 664, 784 N.Y.S.2d 136).   The plaintiff further argued that the defendant, having failed to serve a sufficient “NF-10” denial of claim form within the critical 30-day post-receipt-of-claim period, should be precluded from denying the claim (see generally 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;  St. Vincent's Hosp. & Med. Ctr. v. Nationwide Mut. Ins. Co., 42 A.D.3d 523, 840 N.Y.S.2d 122;  Westchester Med. Ctr. v. Safeco, 40 A.D.3d 984, 837 N.Y.S.2d 207).

We agree with the Supreme Court that the plaintiff's moving papers failed to establish that the “NF-10” denial of claim form was so vague or deficient as to not qualify as a proper response under 11 NYCRR 65-3.4(c) (11).   Moreover, the “NF-10” denial of claim form was issued within 30 days as required by Insurance Law § 5106(a) and 11 NYCRR 65-3.8(c)(1) (see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d at 278, 660 N.Y.S.2d 536, 683 N.E.2d 1;  St. Vincent's Hosp. & Med. Ctr. v. Nationwide Mut. Ins. Co., 42 A.D.3d at 524, 840 N.Y.S.2d 122).   Accordingly, the plaintiff failed to establish, prima facie, its entitlement to summary judgment (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572), and we need not reach the sufficiency of the defendant's opposing papers (see Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400).

In light of our determination, we decline to take judicial notice of certain diagnostic codes contained on the “UB-92” form.