N.Y. Hosp. Med. Ctr. of Queens v. Qbe Ins. Corp.

• Decision Date: 05 February 2014
• Citation: 979 N.Y.S.2d 694,2014 N.Y. Slip Op. 00639,114 A.D.3d 648
• Parties: NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS, as assignee of Khushi Robinson, et al., respondents, v. QBE INSURANCE CORPORATION, appellant.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 648
979 N.Y.S.2d 694
2014 N.Y. Slip Op. 00639

NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS, as assignee of Khushi Robinson, et al., respondents,
v.
QBE INSURANCE CORPORATION, appellant.

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

Feb. 5, 2014.

[979 N.Y.S.2d 695]

Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondents.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

In an action to recover no-fault benefits under two separate policies of automobile insurance, the defendant appeals from a judgment of the Supreme Court, Nassau County (Winslow, J.), entered October 13, 2011, which, upon an order of the same court entered August 2, 2011, granting the plaintiffs' motion for summary judgment on the complaint and denying its cross motion, inter alia, for summary judgment dismissing the complaint, is in favor of the plaintiffs and against it in the sum of $66,682.29.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof, in effect, awarding the plaintiffs damages in the sum of $7,354.28 on the first cause of action and substituting therefor a provision dismissing that cause of action; as so modified, the judgment is affirmed, without costs or disbursements, that branch of the plaintiffs' motion which was for summary judgment on the first cause of action is denied, that branch of the defendant's cross motion which was for summary judgment dismissing that cause of action is granted, the order entered August 2, 2011, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate amended judgment.

The plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on the second cause of action, which related to the claim submitted by Westchester Medical Center in connection with the injuries allegedly sustained by its assignor, Robert de los Santos, by submitting evidence that the prescribed statutory billing form had been mailed to and received by the defendant insurer, which failed to either pay or deny the claims within the requisite 30–day period

[979 N.Y.S.2d 696]

( see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 114 A.D.3d 33, 977 N.Y.S.2d 292 [2d Dept. 2013]; Westchester Med. Ctr. v. Hereford Ins. Co., 95 A.D.3d 1306, 1306–1307, 944 N.Y.S.2d 900; Westchester Med. Ctr. v. Lancer Ins. Co., 94 A.D.3d...