Lenox Hill Hospital v. Government Employees Insurance

Appellate Division of the Supreme Court of New York

Lenox Hill Hospital v. Government Employees Insurance

89 A.D.3d 905, 932 N.Y.2d 705

Appellate Division of the Supreme Court of the State of New York·Decided November 15, 2011·Published·Cited by 7 cases

Opinion

Given the limited nature of the plaintiffs motion for summary judgment, which established the plaintiffs prima facie entitlement to judgment as a matter of law solely on the ground that the defendant did not pay or deny the subject claim within 30 days (see 11 NYCRR 65-3.8 [c]), the defendant’s only burden in opposition to the motion was to raise a triable issue of fact regarding its timely payment or denial of the claim (see e.g. Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]). The defendant succeeded in raising such an issue of fact by submitting evidence that it sent the plaintiff a denial of claim form within the 30-day time limit. Accordingly, the motion was properly denied without regard to the plaintiffs additional contention, improperly raised for the first time in its reply papers on the motion (see Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825, 826 [2009]), that the medical reports upon which the defendant relied to establish the merits of its denial of the claim were not in proper evidentiary form. Mastro, J.P., Chambers, Sgroi and Miller, JJ., concur.

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Given the limited nature of the plaintiffs motion for summary judgment, which established the plaintiffs prima facie entitlement to judgment as a matter of law solely on the ground that the defendant did not pay or deny the subject claim within 30 days (see 11 NYCRR 65-3.8 [c]), the defendant’s only burden in opposition to the motion was to raise a triable issue of fact regarding its timely payment or denial of the claim (see e.g. Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]). The defendant succeeded in raising such an issue of fact by submitting evidence that it sent the plaintiff a denial of claim form within the 30-day time limit. Accordingly, the motion was properly denied without regard to the plaintiffs additional contention, improperly raised for the first time in its reply papers on the motion (see Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825, 826 [2009]), that the medical reports upon which the defendant relied to establish the merits of its denial of the claim were not in proper evidentiary form. Mastro, J.P., Chambers, Sgroi and Miller, JJ., concur.

Lenox Hill Hospital v. Government Employees Insurance, 89 A.D.3d 905, 932 N.Y.2d 705 (N.Y. Ct. App. 2011).

Pincite

89 A.D.3d 905 (Lenox Hill Hospital v. Government Employees Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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