Mount Sinai Hosp. v. Country Wide Ins. Co.

• Decision Date: 28 June 2011
• Citation: 85 A.D.3d 1136,926 N.Y.S.2d 306,2011 N.Y. Slip Op. 05680
• Parties: MOUNT SINAI HOSPITAL, as assignee of Vanessa Ayala, et al., respondents,v.COUNTRY WIDE INSURANCE COMPANY, appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1136

926 N.Y.S.2d 306

2011 N.Y. Slip Op. 05680

MOUNT SINAI HOSPITAL, as assignee of Vanessa Ayala, et al., respondents,

v.COUNTRY WIDE INSURANCE COMPANY, appellant.

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

June 28, 2011.

OPINION TEXT STARTS HEREJaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for appellant.Joseph Henig, P.C., Bellmore, N.Y., for respondents.

In an action to recover no-fault medical payments under two insurance policies, the defendant appeals (1) from an order of the Supreme Court, Nassau County (Winslow, J.), entered July 19, 2010, which granted the plaintiffs' motion for summary judgment on the complaint and denied its cross motion for summary judgment, in effect, dismissing the complaint, and (2) as limited by its brief, from so much of an order of the same court entered February 7, 2011, as denied those branches of its motion which were for leave to renew its cross motion for summary judgment, in effect, dismissing the complaint and its opposition to the plaintiffs' motion for summary judgment on the complaint.

ORDERED that the order entered July 19, 2010, is modified, on the law, by deleting the provision thereof granting the plaintiffs' motion for summary judgment on the complaint, and substituting therefor a provision denying the plaintiffs' motion; as so modified, the order entered July 19, 2010, is affirmed, without costs or disbursements; and it is further,

ORDERED that the appeal from so much of the order entered February 7, 2011, as denied that branch of the defendant's motion which was for leave to renew its opposition to the plaintiffs' motion for summary judgment is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order entered July 19, 2010; and it is further,

ORDERED that the order entered February 7, 2011, is affirmed insofar as reviewed, without costs or disbursements.

The plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on their causes of action to recover no-fault insurance medical payments by submitting evidence that the necessary billing documents had been mailed and received by the defendant insurer, which failed to either pay or deny the claims within the requisite 30–day period ( see Insurance Law § 5106 [a]; 11 NYCRR 65–3.8[a][1]; Westchester Med. Ctr. v. GMAC Ins. Co. Online, Inc., 80 A.D.3d 603, 604, 915 N.Y.S.2d 115; Westchester Med. Ctr. v. Progressive Cas. Ins. Co., 51 A.D.3d 1014, 1017, 858 N.Y.S.2d 754). However, in opposition, the defendant raised triable issues of fact with respect to whether the limits of the policy at issue in the first cause of action...