New York & Presbyterian Hospital v. Allstate Insurance Company

• Decision Date: 13 June 2006
• Docket Number: 2005-02376.
• Citation: 819 N.Y.S.2d 268,30 A.D.3d 492,2006 NY Slip Op 04815
• Parties: NEW YORK & PRESBYTERIAN HOSPITAL, as Assignee of YAAKOV ELMAN, et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Respondent.
• Court: New York Supreme Court — Appellate Division

30 A.D.3d 492

819 N.Y.S.2d 268

2006 NY Slip Op 04815

NEW YORK & PRESBYTERIAN HOSPITAL, as Assignee of YAAKOV ELMAN, et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Respondent.

2005-02376.

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 13, 2006.

In an action to recover no-fault medical payments, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (McCarty III, J.), dated February 18, 2005, as denied that branch of their motion which was for summary judgment on the second cause of action, granted that branch of the defendant's cross motion which was for summary judgment dismissing the third cause of action, and, upon granting that branch of their motion which was for summary judgment on the fourth cause of action, awarded interest only until the date of the determination and provided that the fourth cause of action "shall not bear interest until entry of the judgment disposing of the action."

Ordered that the order is modified, on the law, by (1) deleting the provision thereof denying that branch of the plaintiffs' motion which was for summary judgment on the second cause of action and substituting therefor a provision granting that branch of the motion, and (2) deleting the provisions thereof which, upon granting that branch of the plaintiffs' motion which was for summary judgment on the fourth cause of action, awarded interest only until the date of the Supreme Court's determination and provided that the fourth cause of action shall not bear interest until entry of the judgment disposing of the action, and substituting therefor a provision awarding interest on the fourth cause of action for the period commencing 30 days after each claim was presented to the defendant until the date the claim was paid; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.

Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.5, insurers are required either to pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date the applicant supplies proof of claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to comply with the 30-day limit results in the claim becoming overdue, which could result in the waiver of the insurer's defenses (id.). The one exception to this rule is if the insurer requests medical verification (see Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 431, 432 [1996]).

The...