Westchester Medical Center v. Liberty Mutual Insurance Company

• Decision Date: 22 May 2007
• Docket Number: 2006-10505.
• Citation: 40 A.D.3d 981,2007 NY Slip Op 04483,837 N.Y.S.2d 210
• Parties: WESTCHESTER MEDICAL CENTER, as Assignee of ERIC BIRNBAUM, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Respondent.
• Court: New York Supreme Court — Appellate Division

40 A.D.3d 981

837 N.Y.S.2d 210

2007 NY Slip Op 04483

WESTCHESTER MEDICAL CENTER, as Assignee of ERIC BIRNBAUM, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Respondent.

2006-10505.

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

Decided May 22, 2007.

In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), dated October 20, 2006, which granted the defendant's cross motion for summary judgment dismissing the second, third, and fourth causes of action and, in effect, denied its motion for summary judgment on those causes of action.

Ordered that the order is reversed, on the law, with costs, the plaintiff's motion for summary judgment on the second, third, and fourth cause of action is granted, and the defendant's cross motion for summary judgment dismissing the second, third, and fourth causes of action is denied.

With respect to the second cause of action involving health services provided to Kevin Kane to recover no-fault benefits under an insurance contract and the third cause of action involving health services provided to Gladys Navarro, limited to recovery of an attorney's fee and statutory interest, the plaintiff demonstrated its entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by the defendant and that payment of the no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Mount Sinai Hosp. v Joan Serv. Corp., 22 AD3d 649, 650 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]). While the defendant, in its cross motion, initially denied that the plaintiff provided requested verification material to the defendant triggering its obligation to either pay or deny the claims (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]), the defendant failed to rebut the plaintiff's showing that the verification material was actually mailed to the defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 548 [2006]). Here, the plaintiff, on the second and third causes of action, proffered the certified mail receipts with postmarks of September 7, 2005, as to Kane and September 16, 2005, as to Navarro, as well as specific item numbers and notations to the Kane and Navarro medical records. The plaintiff also proffered the return receipt card with the same item numbers and notations indicating that they had been received by "W. Deall," a representative of the defendant on September 9, 2005, as to Kane and September 19, 2005 as to Navarro. A presumption of receipt was created by the signed certified mail return receipt and the defendant's denial of receipt of the verification material was insufficient to raise a triable issue of fact (see Matter of Fodor v MBNA Am. Bank, N.A., 34 AD3d 473 [2006]; Matter of State Farm Mut. Auto. Ins. Co. [Kankam], 3 AD3d 418, 419 [2004]; cf. New York & Presbyt. Hosp. v Allstate Ins. Co., supra at 548). Accordingly, the Supreme Court should have granted summary judgment to the plaintiff on the second and third causes of action and erred in awarding summary judgment to the defendant on those causes of action.

With respect to the fourth cause of action to recover no-fault benefits but involving health services provided to Alyssa Arater, the plaintiff similarly demonstrated its entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by the defendant and that payment of the no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Mount Sinai Hosp. v Joan Serv. Corp., supra; Mary Immaculate Hosp. v Allstate Ins. Co., supra). The defendant presented evidence in opposition to the motion and in support of its cross motion that the plaintiff failed to provide verification material, i.e. medical records, requested in writing by the defendant on October 21 2005 (see 11 NYCRR 65-3.5 [b]). The plaintiff, in opposition to the cross motion and in further support of its motion for summary judgment, proffered the certified mail receipt with a postmark of February 13, 2006, an...