Presbyterian brought this action against Country–Wide to compel payment of no-fault benefits in the amount of its bill, plus statutory interest and attorney's fees, alleging it had provided timely notice and proof of claim under 11 NYCRR 65–1.1, which requires an insured person's assignee to submit written proof of claim no later than 45 days after the date health care services are rendered. Presbyterian and Country–Wide each moved for summary judgment. Supreme Court granted Presbyterian summary judgment, ruling that the hospital satisfied its notice obligation by timely submitting the proof of claim ( Wyckoff Hgts. Med. Ctr. v. Country Wide Ins. Co., 2009 N.Y. Slip Op. 33263 [U], 2009 WL 8486286 [2009] ). Citing 11 NYCRR 65–3.3(d), the Appellate Division affirmed (71 A.D.3d 1009, 896 N.Y.S.2d 691 [2d Dept.2010] ), stating, “[c]ontrary to the insurer's contention, the hospital's submission of a completed hospital facility form ... within 45 days after services were rendered satisfied the written notice requirement set forth in 11 NYCRR 65–1.1” ( id. at 1010, 896 N.Y.S.2d 691). This Court granted Country–Wide leave to appeal and we now reverse. Country–Wide argues that the Appellate Division decision eviscerates the 30–day written notice of accident requirement and that the aforementioned regulations do not contain any language which provides that submission of a proof of claim for health care services within 45 days excuses the failure to give the threshold notice of accident within 30 days of the accident.
Supreme Court granted Presbyterian summary judgment, ruling that the hospital satisfied its notice obligation by timely submitting the proof of claim. Citing 11 NYCRR 65-3.3 (d), the Appellate Division affirmed (71 AD3d 1009 [2d Dept 2010]), stating "[c]ontrary to the insurer's contention, the hospital's submission of a completed hospital facility form . . . within 45 days after services were rendered satisfied the written notice requirement set forth in 11 NYCRR 65-1.1." This Court granted Country Wide leave to appeal and we now reverse.
Decided September 21, 2010. Appeal from the 2d Dept: 71 AD3d 1009. Motions for Leave to Appeal granted.
Ordered that one bill of costs is awarded to the defendant. The plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak (hereinafter the plaintiff), established, prima facie, its entitlement to judgment as a matter of law on the second cause of action by demonstrating that the necessary billing forms were mailed to and received by the defendant and that payment of no-fault benefits was overdue ( see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Wyckoff Hgts. Med. Ctr. v Country-Wide Ins. Co., 71 AD3d 1009, 1010, lv granted 15 NY3d 709; New York Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730). However, in opposition, the defendant raised a triable issue of fact as to whether the plaintiff fully complied with the defendant's demand for verification ( see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517, 518; Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481; Mount Sinai Hosp. v Allstate Ins. Co., 25 AD3d 673, 674). The defendant was not obligated to pay or deny the claim until all demanded verification was provided by the plaintiff ( see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d at 518).
ORDERED that one bill of costs is awarded to the defendant. The plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak (hereinafter the plaintiff), established, prima facie, its entitlement to judgment as a matter of law on the second cause of action by demonstrating that the necessary billing forms were mailed to and received by the defendant and that payment of no-fault benefits was overdue ( see Insurance Law § 5106 [a]; 11 NYCRR 65–3.8[a][1]; Wyckoff Hgts. Med. Ctr. v. Country–Wide Ins. Co., 71 A.D.3d 1009, 1010, 896 N.Y.S.2d 691,lv. granted15 N.Y.3d 709, 909 N.Y.S.2d 23, 935 N.E.2d 815;New York & Presbyt. Hosp. v. Countrywide Ins. Co., 44 A.D.3d 729, 730, 843 N.Y.S.2d 662). However, in opposition, the defendant raised a triable issue of fact as to whether the plaintiff fully complied with the defendant's demand for verification ( see St. Barnabas Hosp. v. American Tr. Ins. Co., 57 A.D.3d 517, 518, 869 N.Y.S.2d 149;Westchester Med. Ctr. v. Allstate Ins. Co., 53 A.D.3d 481, 859 N.Y.S.2d 567;Mount Sinai Hosp. v. Allstate Ins. Co., 25 A.D.3d 673, 674, 811 N.Y.S.2d 726).