MARY IMMACULATE HOSPITAL v. ALLSTATE INSURANCE COMPANY (2007)

In an action to recover no-fault medical payments under certain insurance contracts, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Peck, J.), dated December 28, 2004, as granted those branches of the plaintiff's motion which were for summary judgment on the causes of action to recover no-fault medical payments allegedly due to Mary Immaculate Hospital as assignee of Yvette Coley and Khayyam Jackson.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the causes of action to recover no-fault medical payments allegedly due to Mary Immaculate Hospital as assignee of Yvette Coley and Khayyam Jackson are denied.

Viewing the evidence in the light most favorable to the nonmoving party (see Gonzalez v. Metropolitan Life Ins. Co., 269 A.D.2d 495, 496, 704 N.Y.S.2d 484), we conclude that the plaintiff, Mary Immaculate Hospital (hereinafter the Hospital), failed, in support of its motion for summary judgment, to tender sufficient evidence in admissible form eliminating any triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  cf. Montefiore Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 9 A.D.3d 354, 355-356, 780 N.Y.S.2d 161).   The Hospital submitted affidavits in which a billing service representative averred that she had “billed” the defendant, Allstate Insurance Company (hereinafter Allstate), “with a form N-F5 and UB92 for the sum of” $3606.93 and $2069.12, respectively.   The evidence submitted in support of the motion, however, did not establish that the billing representative, or anyone else, mailed to Allstate those documents related to the claims for treatment rendered to Yvette Coley and Khayyam Jackson (cf. Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742, 742-743, 774 N.Y.S.2d 564;  Hospital for Joint Diseases v. Nationwide Mut. Ins. Co., 284 A.D.2d 374, 375, 726 N.Y.S.2d 443).   The certified mail receipts submitted in support of the motion did not establish that those mailings contained the documents relating to those patients.

Since the Hospital failed to establish prima facie that it was entitled to judgment as a matter of law, it is unnecessary to consider the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 A.D.2d 553, 555, 692 N.Y.S.2d 665).

Allstate's remaining contention is without merit.