Appellate Division of the Supreme Court of New York, 2007

New York & Presbyterian Hospital v. Selective Insurance

Appellate Division of the Supreme Court of New York · Decided September 18, 2007

43 A.D.3d 1019; 842 N.Y.S.2d 63

Cases that cite this one

12 later published cases cite this decision.

Westchester Medical Center v. Progressive Casualty Insurance (Appellate Division of the Supreme Court of New York 2011)
Viviane Etienne Medical Care v. Country-Wide Ins. (N.Y. 2015)
Kingsbrook Jewish Medical Center v. Allstate Insurance (Appellate Division of the Supreme Court of New York 2009)
American Tr. Ins. Co. v. Beach Med. Rehabilitation, P.C. (Appellate Division of the Supreme Court of New York 2026)
Hernandez v. Merchants Mut. Ins. Co. (Appellate Division of the Supreme Court of New York 2022)
Westchester Medical Center v. Lancer Insurance (Appellate Division of the Supreme Court of New York 2012)
Westchester Medical Center v. New York Central Mutual Fire Insurance (Appellate Division of the Supreme Court of New York 2011)
NYU-Hospital v. American International Group, Inc. (Appellate Division of the Supreme Court of New York 2011)
NYU-Hospital for Joint Diseases v. American International Group, Inc. (Appellate Division of the Supreme Court of New York 2011)
Wyckoff Heights Medical Center v. Country-Wide Insurance (Appellate Division of the Supreme Court of New York 2010)
Lenox Hill Radiology v. New York Central Mutual Fire Insurance (Nassau County District Court 2008)
New York & Presbyterian Hospital v. American Transit Insurance (Appellate Division of the Supreme Court of New York 2007)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Lally, J.), entered October 3, 2006, which granted the plaintiffs motion for summary judgment on the complaint and denied its cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered November 2, 2006, which, upon the order, is in favor of the plaintiff and against it in the principal sum of $27,532.36.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action {see Matter of Aho, 39 NY2d *1020241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits was overdue (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). 11 NYCRR 65-3.8 (a) provides that no-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, which shall include verification of all of the relevant information requested pursuant to 11 NYCRR 65-3.5.

The plaintiff hospital made a prima facie showing on its summary judgment motion that it had mailed the prescribed statutory billing form and did not receive payment in 30 days. In opposition, the defendant insurer failed to raise a triable issue of fact. Specifically, the defendant failed to come forward with proof in admissible form to demonstrate “ ‘the fact’ or the evidentiary ‘found[ation for its] belief that the patient’s treated condition was unrelated to his or her automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [1999], quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]). The affidavit of its medical expert was conclusory, speculative, and unsupported by the evidence. Accordingly, the Supreme Court properly granted the plaintiffs motion for summary judgment on the complaint.

The defendant’s remaining contention is without merit. Spolzino, J.E, Skelos, Lifson and Balkin, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.