Inwood Hill Med., P.C. v Metropolitan Prop. & Cas. Ins. Co.

[*1] Inwood Hill Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. 2009 NY Slip Op 51264(U) [24 Misc 3d 127(A)] Decided on June 18, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 18, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and MOLIA, JJ
2008-1165 N C.

Inwood Hill Medical, P.C. and BRONX NEURODIAGNOSTIC, P.C. a/a/o JUANITO SANTANA, Appellants,

against

Metropolitan Property and Casualty Insurance Company d/b/a METLIFE AUTO & HOME, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (David Goodsell, J.), entered April 7, 2008. The order granted defendant's motion to dismiss the complaint and implicitly denied plaintiffs' cross motion for summary judgment.Order reversed without costs, defendant's motion to dismiss the complaint denied, plaintiffs' cross motion for summary judgment granted and matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney's fees.

In this action by providers to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint and plaintiffs cross-moved for summary judgment. The District Court found that plaintiffs had established their prima facie entitlement to summary judgment, but granted defendant's motion, finding that the court did not have jurisdiction over the issue of whether plaintiffs' assignor was in the course of employment at the time of the accident. The court referred the matter to the Workers' Compensation Board to make that determination. Plaintiffs appeal, arguing that defendant should be precluded from asserting this defense as a result of its failure to timely deny the claim and, as a result, that their motion for summary judgment should have been granted. [*2]

Since defendant raised no issue in the District Court with regard to plaintiffs' prima facie case, we do not pass upon the propriety of the District Court's determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Defendant failed to allege, let alone establish, that its denial of claim form, which was dated February 21, 2005, two years after the services at issue were rendered, was timely mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2007]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2007]; Delta Diagnostic Radiology, P.C. v GEICO Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50137[U] [App Term, 9th & 10th Jud Dists 2006]). Defendant is, therefore, precluded from asserting most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its only proffered defense, that plaintiffs' assignor was acting as an employee at the time of the accident (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

Accordingly, the order is reversed, plaintiffs' motion for summary judgment is granted, and the matter is remitted to the District Court for the calculation of statutory
interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 18, 2009