Westchester Med. Ctr. v. Lincoln Gen. Ins. Co.
| Decision Date | 22 March 2011 |
| Citation | 82 A.D.3d 1085,921 N.Y.S.2d 88,2011 N.Y. Slip Op. 02379 |
| Parties | WESTCHESTER MEDICAL CENTER, etc., respondent,v.LINCOLN GENERAL INSURANCE COMPANY, appellant. |
| Court | New York Supreme Court — Appellate Division |
82 A.D.3d 1085
921 N.Y.S.2d 88
2011 N.Y. Slip Op. 02379
WESTCHESTER MEDICAL CENTER, etc., respondent,
v.
LINCOLN GENERAL INSURANCE COMPANY, appellant.
Supreme Court, Appellate Division, Second Department, New York.
March 22, 2011.
[921 N.Y.S.2d 88]
Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for appellant.Joseph Henig, P.C., Bellmore, N.Y., for respondent.PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
[921 N.Y.S.2d 89 , 82 A.D.3d 1085]
In an action to recover no-fault medical benefits under an insurance contract, the defendant appeals from an order of the Supreme Court, Nassau County (Martin, J.), entered October 28, 2009, which denied its motion pursuant to CPLR 5015(a) to modify a judgment of the same court dated April 30, 2009, which, upon an order granting the plaintiff's motion for summary judgment on the complaint, was in favor or the plaintiff and against it in the principal sum of $416,039.42.
ORDERED that the order entered October 28, 2009, is affirmed, with costs.
The plaintiff hospital, as assignee of Bartolo Reyes, was awarded judgment against the defendant in the principal sum of $416,039.42, in this action to recover no-fault medical benefits under a contract of insurance entered into between the [82 A.D.3d 1086] plaintiff's assignee and the defendant. The defendant thereafter moved to modify the judgment pursuant to CPLR 5015(a), belatedly asserting that the judgment exceeded the coverage limit of the subject policy due, in part, to payments previously made under the policy to other health care providers. In the order appealed from, the Supreme Court properly denied the defendant's motion to modify the judgment.
The defendant failed to specify on which of the five subdivisions of CPLR 5015(a) its motion was based, much less establish its entitlement to relief on any of the enumerated grounds. To the extent that the defendant sought modification pursuant to CPLR 5015(a)(2) based upon “newly-discovered evidence,” the defendant failed to demonstrate that the evidence offered in support of the motion, i.e., an affidavit of an employee setting forth the policy limits and the amount of benefits paid for alleged prior claims, “was not available at the time of the prejudgment proceedings” ( Jonas v. Jonas, 4 A.D.3d 336, 336, 770 N.Y.S.2d 889; see Sicurelli v. Sicurelli, 73 A.D.3d 735, 901 N.Y.S.2d 305).
Moreover, although courts possess inherent discretionary power to...
To continue reading
Request your trial
-
Wasif v. Khan
...also stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action. Since CPLR 3216 is a [82 A.D.3d 1085] legislative creation and not part of a court's inherent power ( see Airmont Homes v. Town of Ramapo, 69 N.Y.2d 901, 902, 516 N.Y.S.2d 193......
-
Romeo v. Barrella
...to disenfranchise or intimidate the plaintiff, the moving defendants demonstrated that the contested actions that occurred were within [921 N.Y.S.2d 88] the authority of the board, and taken in good faith and for the benefit of the Cooperative, and, thus, that such actions were protected fr......
-
JPMorgan Chase Bank, Nat'l Ass'n v. Eze
...complaint (see Airmont Homes v. Town of Ramapo, 69 N.Y.2d at 902, 516 N.Y.S.2d 193, 508 N.E.2d 927 ; 132 N.Y.S.3d 863 Wasif v. Khan, 82 A.D.3d at 1085, 919 N.Y.S.2d 203 ; Rose v. Aziz, 60 A.D.3d 925, 926, 874 N.Y.S.2d 816 ).The defendant's purported 90–day demand was defective on its face, ......
-
Mount Sinai Hosp. v. Dust Transit, Inc.
...judgment on the complaint, seeking a certain amount of benefits ( see [962 N.Y.S.2d 310]Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 82 A.D.3d 1085, 1086, 921 N.Y.S.2d 88). No reasonable justification was provided for the failure to raise the issue of partial exhaustion earlier. The fail......