Nyack Hospital, a/a/o Flora Schnee, respondent, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY

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Supreme Court, Appellate Division, Second Department, New York.

NEW YORK UNIVERSITY HOSPITAL RUSK INSTITUTE, etc., et al., plaintiffs, Nyack Hospital, a/a/o Flora Schnee, respondent, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, appellant.

Decided: April 24, 2007

HOWARD MILLER, J.P., FRED T. SANTUCCI, ANITA R. FLORIO, and ROBERT A. LIFSON, JJ. Short & Billy, New York, N.Y. (Skip Short of counsel), for appellant. Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments under certain contracts of insurance, the defendant appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), dated May 12, 2006, which granted the motion of the plaintiff Nyack Hospital, a/a/o Flora Schnee, for summary judgment on the second cause of action.

ORDERED that the order is reversed, on the law, with costs, and the motion of the plaintiff Nyack Hospital, a/a/o Flora Schnee, for summary judgment on the second cause of action is denied.

 In support of its motion for summary judgment on the second cause of action, the plaintiff Nyack Hospital, a/a/o Flora Schnee (hereinafter Nyack), made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, the requisite billing form, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and an affidavit of its biller attesting to the facts that, among other things, the defendant Government Employees Insurance Company (hereinafter GEICO) failed to either pay the bill or issue a timely denial of claim form in 30 days (see Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 34 A.D.3d 532, 827 N.Y.S.2d 72).   However, in opposition to the motion, GEICO raised triable issues of fact by demonstrating that it timely requested medical verification of the claim, and timely denied it based upon a peer review report concluding that the subject treatment was the result of a pre-existing medical condition and did not arise from a no-fault-covered accident (see Insurance Law § 5102[a][1], [b];  11 NYCRR 65-3.8[a][1], [b][4];  New York & Presbyt. Hosp. v. Allstate Ins. Co., 30 A.D.3d 492, 819 N.Y.S.2d 268).   Accordingly, the Supreme Court should have denied Nyack's motion for summary judgment on the second cause of action.

 Contrary to the Supreme Court's conclusion, GEICO was not required to set forth a medical rationale in its denial of claim form.   The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8[b][4] ).   Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10;  11 NYCRR 65-3.4[c][11] ), it would have so provided (see A.B. Med. Servs., PLLC v. Liberty Mut. Ins. Co., 39 A.D.3d 779, 835 N.Y.S.2d 614 [decided herewith];  A.B. Med. Servs., PLLC v. GEICO Cas. Ins. Co., 39 A.D.3d 778, 835 N.Y.S.2d 616 [decided herewith] ).

We decline GEICO's request to search the record and award summary judgment in its favor on the second cause of action (see Gonzalez v. Plain Edge High School Dist., 300 A.D.2d 540, 752 N.Y.S.2d 570).

GEICO's remaining contention is improperly raised for the first time on appeal (see Castro v. Homsun Corp., 34 A.D.3d 616, 826 N.Y.S.2d 89).

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