Nyack Hosp. v New York Cent. Mut. Fire Ins. Co.
Annotate this CaseDecided on November 5, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2007-816 N C.
The Nyack Hospital a/a/o GERALD HUTCHINSON, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the District Court of Nassau County, First District (Gary Franklin
Knobel, J.), dated March 1, 2007. The order granted plaintiff's motion for summary judgment and
denied defendant's cross motion for summary judgment.
Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. The court below granted plaintiff's motion and denied defendant's cross motion. The instant appeal by defendant ensued.
On appeal, defendant contends that the affidavit by the biller employed by a third party, submitted in support of plaintiff's motion, failed to lay a proper foundation for the documents annexed to the moving papers and that, as a result, plaintiff failed to establish a prima facie case (see Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). We decline to consider this argument since it is raised for the first time on appeal and is therefore unpreserved (cf. Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, we do not pass upon the propriety of the determination of [*2]the court below with respect to plaintiff's establishment of its prima facie case.
In opposition to plaintiff's motion and in support of its cross motion seeking summary judgment dismissing the complaint as premature on the ground that plaintiff had failed to respond to its verification requests (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]), defendant argued that notwithstanding the fact that it had received plaintiff's hospital facility form (NYS Form NF-5), verification was still outstanding because it had received neither an application for motor vehicle no-fault benefits nor a completed assignment of benefits form. Contrary to defendant's contention, an insurer must accept a completed hospital facility form submitted by a provider of health services in lieu of a prescribed application for motor vehicle no-fault benefits (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [g]; see also Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2005]; Nyack Hosp. v Allstate Ins. Co., 13 Misc 3d 139[A], 2006 NY Slip Op 52233[U] [App Term, 9th & 10th Jud Dists 2006]). Moreover, defendant admitted having received the hospital facility form (which included an assignment) on October 6, 2005, and did not request verification of the assignment until December 23, 2005. Accordingly, defendant failed to establish that it timely requested verification with respect to the assignment (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007], supra), and consequently failed to demonstrate its entitlement to verification of the assignment (id.).
Since defendant failed to raise a triable issue of fact in opposition to plaintiff's motion for summary judgment and failed to set forth a prima facie case with respect to its cross motion for summary judgment, the court below properly granted plaintiff's motion and denied defendant's cross motion. The order is therefore affirmed.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 05, 2008
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