New York & Presbyt. Hosp. v American Tr. Ins. Co., 2007 NY Slip Op 09376 (App. Div. 2d)
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d [*2]241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The Supreme Court, upon reargument, should have adhered to its original determination denying the plaintiff’s motion for summary judgment. On that motion, the plaintiff established its prima facie entitlement to judgment as a matter of law by demonstrating that the necessary billing forms were mailed to and received by the defendant, and that payment of the no-fault benefits was overdue (see New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019; Insurance Law ยง 5106 [a]; 11 NYCRR 65-3.8 [c]). However, in response, the defendant raised a triable issue of fact as to whether the benefits were overdue (cf. A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780-781; New York Univ. Hosp. Rusk Inst. v Government Empl. Ins. Co., 39 AD3d 832, 833). The defendant provided evidence showing that the plaintiff’s claim for the benefits was timely denied on the ground that the plaintiff submitted the billing forms more than 45 days after the last date of medical service (see 11 NYCRR 65-1.1, 65-3.3 [e]; St. Vincent’s Hosp. & Med. Ctr. v Country Wide Ins. Co., 24 AD3d 748, 749; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89, 90).