ST VINCENT HOSPITAL MEDICAL CENTER v. ALLSTATE INSURANCE COMPANY

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ST. VINCENT'S HOSPITAL & MEDICAL CENTER, as assignee of Jane Fritz, respondent, v. ALLSTATE INSURANCE COMPANY, appellant.

Decided: January 26, 2010

REINALDO E. RIVERA, J.P., MARK C. DILLON, HOWARD MILLER, and SHERI S. ROMAN, JJ. McDonnell & Adels, PLLC, Garden City, N.Y. (Martha S. Henley of counsel), for appellant. Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Feinman, J.), entered January 14, 2009, which, upon a decision of the same court dated December 3, 2008, granted the plaintiff's motion for summary judgment on the complaint, in effect, denied the defendant's cross motion for summary judgment dismissing the complaint, and is in favor of the plaintiff and against it in the principal sum of $32,086.70.

ORDERED that the order and judgment is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and the complaint is dismissed.

In support of its cross motion, the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the accident in which the plaintiff's assignor was injured was not an insured incident (see Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320). In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the defense of lack of coverage is not precluded by the defendant's failure to pay or deny the subject no-fault claim within the requisite 30-day period (see Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318; Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 N.Y.2d at 199).

Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the complaint, and granted the defendant's cross motion for summary judgment dismissing the complaint.

The plaintiff's remaining contentions are without merit.

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