WESTCHESTER MEDICAL CENTER v. LINCOLN GENERAL INSURANCE COMPANY

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

WESTCHESTER MEDICAL CENTER, as assignee of Bartolo Reyes, appellant, v. LINCOLN GENERAL INSURANCE COMPANY, respondent.

Decided: March 31, 2009

PETER B. SKELOS, J.P., STEVEN W. FISHER, FRED T. SANTUCCI, and RUTH C. BALKIN, JJ. Joseph Henig, P.C., Bellmore, N.Y. (Mark Green of counsel), for appellant. Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated October 14, 2008, which denied its motion for summary judgment on the complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion is granted.

 The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint to recover no-fault medical payments by submitting evidence that the prescribed statutory billing forms had been mailed and received, and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106[a];  11 NYCRR § 65-3.5;  Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 N.Y.3d 312, 317-318, 849 N.Y.S.2d 473, 879 N.E.2d 1291;  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, 808 N.Y.S.2d 399;  New York & Presbyt. Hosp. v. AIU Ins. Co., 20 A.D.3d 515, 516, 799 N.Y.S.2d 245;  New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., 5 A.D.3d 568, 570, 774 N.Y.S.2d 72).   In opposition, the defendant failed to raise a triable issue of fact.

 Contrary to the defendant's contention, the two letters it sent to the plaintiff on March 31, 2008, and April 30, 2008, respectively, advising the plaintiff that the processing of its claim was being held pending an investigation of the loss, which included verifying the claimant's involvement in the motor vehicle accident and conducting examinations under oath of any individuals with personal knowledge of the facts, did not serve to toll the 30-day statutory period (see 11 NYCRR 65-3.5[a];  Nyack Hosp. v. Encompass Ins. Co., 23 A.D.3d 535, 536, 806 N.Y.S.2d 643;  Mount Sinai Hosp. v. Triboro Coach, 263 A.D.2d 11, 17, 699 N.Y.S.2d 77;  see also Ocean Diagnostic Imaging, P.C. v. Citiwide Auto Leasing Inc., 8 Misc.3d 138(A), 2005 WL 1981323;  Melbourne Med., P.C. v. Utica Mut. Ins. Co., 4 Misc.3d 92, 781 N.Y.S.2d 819).   We also reject the defendant's contention that the 30-day statutory period was tolled pending the defendant's submission of a no-fault application, as 11 NYCRR 65.15(d)(6) specifically requires an insurer to accept a completed hospital facility form (N.Y.S. Form N-F 5), as was submitted here, “in lieu of a prescribed application for motor vehicle no-fault benefits” (see Nyack Hosp. v. Encompass Ins. Co., 23 A.D.3d at 536, 806 N.Y.S.2d 643).

 The defendant also failed to raise a triable issue of fact, solely based on the hearsay statement of its investigator, as to whether the accident was covered by Workers' Compensation benefits.   Moreover, the defendant's possible entitlement to offset any no-fault benefits it pays by any recovery pursuant to a Workers' Compensation claim does not constitute a defense of lack of coverage, which is not subject to the requirement that there be timely service of the disclaimer (see 11 NYCRR 65-3.5[a];  Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 N.Y.3d 556, 563, 860 N.Y.S.2d 471, 890 N.E.2d 233;  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;  cf. Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 659 N.Y.S.2d 246, 681 N.E.2d 413 [question of fact as to whether injuries were sustained in a separate, work-related accident] ).   Where, as here, the defendant's denial of liability also was based upon an alleged breach of a policy condition, to wit, the failure of the plaintiff's assignor to appear at an examination under oath, such an alleged breach does not serve to vitiate the medical provider's right to recover no fault benefits or to toll the 30-day statutory period (see Mount Sinai Hosp. v. Triboro Coach, 263 A.D.2d 11, 17, 699 N.Y.S.2d 77). Rather, such denial was subject to the preclusion remedy (see Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d at 199, 659 N.Y.S.2d 246, 681 N.E.2d 413;  Zappone v. Home Ins. Co., 55 N.Y.2d 131, 136-137, 447 N.Y.S.2d 911, 432 N.E.2d 783;  cf. Presbyterian Hosp. In City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 279-280, 660 N.Y.S.2d 536, 683 N.E.2d 1).

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