ST. VINCENT'S HOSPITAL & MEDICAL CENTER v. Allstate Insurance Company

• Decision Date: 13 May 2002
• Citation: 294 A.D.2d 425,742 N.Y.S.2d 350
• Court: New York Supreme Court — Appellate Division
• Parties: ST. VINCENT'S HOSPITAL & MEDICAL CENTER et al., Appellants,<BR>v.<BR>ALLSTATE INSURANCE COMPANY, Respondent.

294 A.D.2d 425

742 N.Y.S.2d 350

ST. VINCENT'S HOSPITAL & MEDICAL CENTER et al., Appellants,

v.ALLSTATE INSURANCE COMPANY, Respondent.

Decided May 13, 2002.

Smith, J.P., O'Brien, McGinity and Townes, JJ., concur.

Ordered that the appeal by the plaintiff Hospital for Joint Diseases is dismissed, without costs or disbursements, as that plaintiff is not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is modified by deleting the provision thereof denying that branch of the motion which was for summary judgment on the second cause of action and substituting therefor provisions granting that branch of the motion to the extent of awarding St. Vincent's Hospital & Medical Center the principal sum of $60, otherwise denying that branch of the motion, and, on the Court's own motion, otherwise dismissing the second cause of action; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The appellant St. Vincent's Hospital & Medical Center (hereinafter the appellant) failed to make a prima facie showing of entitlement to judgment as a matter of law as to the first cause of action (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). The evidence presented by the appellant was insufficient to establish that the defendant wrongly denied the appellant's claim for payment for medical services on the basis that the policy limits were exhausted. The appellant failed to show that the policy limits of $50,000 were not exhausted by legitimate claims made prior to the delivery of the appellant's claim to the no-fault insurer.

Thus, summary judgment was properly denied as to the first cause of action. The defendant's contention that the complaint fails to state a cause of action for the recovery of the sum sought in the first cause of action, raised for the first time on appeal, is not properly before this Court (see St. Clare's Hosp. v Allcity Ins. Co., 201 AD2d 718).

Summary judgment should have been granted, however, on the second cause of action to the extent that it sought an attorney's fee in the sum of $60 on a claim for payment for medical services provided to the appellant's assignor. The claim was initially denied in full by the defendant within the statutory 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g]), but was later, in large part, paid by the defendant. The appellant fails to demonstrate its entitlement to...