Presbyterian Hospital in City of New York v. Aetna Casualty & Surety Co.

233 A.D.2d 433, 650 N.Y.S.2d 602, 1996 N.Y. App. Div. LEXIS 11977

Opinion

—In an action, inter alia, pursuant to Insurance Law § 5106 by the plaintiff hospital, as assignee of a patient, to recover benefits under the no-fault provisions of the Insurance Law, the defendant appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), dated October 17, 1995, which, inter alia, denied the defendant’s motion, in effect, to renew its prior cross motion for summary judgment, which was denied by an order dated September 22, 1994.

Ordered that the order is affirmed, with costs.

The underlying facts of this case are set out in the companion appeal, Presbyterian Hosp. v Aetna Cas. & Sur. Co. (233 AD2d 431 [decided herewith]).

Upon its motion, in effect, to renew its prior cross motion for summary judgment, Aetna Casualty & Surety Company (hereinafter Aetna) contended that the court should vacate its earlier order and judgment because Aetna had never insured the plaintiff hospital’s patient, as well as because the patient’s assignment of his no-fault coverage to the plaintiff hospital was defective.

The court properly denied the motion. Aetna had previously admitted in an affidavit that it was the insurance carrier for the plaintiff hospital’s patient, and it failed to allege any deficiency in the plaintiff hospital’s assignment in its denial of claim. As a result, it waived any such defense (see, St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718; Matter of Fireman’s Fund Ins. Co. v Freda, 156 AD2d 364; Fabian v MVAIC, 111 AD2d 366; see also, 11 NYCRR 65.15 [g] [3]).

The remaining issues raised by the defendant are dehors the record, unpreserved for appellate review, or without merit. Rosenblatt, J. P., Pizzuto, Friedmann and Goldstein, JJ., concur.