New York & Presbyt. Hosp. v Countrywide Ins. Co., 2007 NY Slip Op 07675 (App. Div. 2d)

The plaintiff New York Hospital Medical Center of Queens (hereinafter the plaintiff) established, prima facie, its entitlement to judgment as a matter of law with respect to the second cause of action by demonstrating that the necessary billing documents were mailed to and received by the defendant and that payment of the no-fault benefits was overdue (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743). However, in opposition to the motion, the defendant submitted admissible evidence which raised triable issues of fact as to the date on which the plaintiff mailed the no-fault claims to the defendant and whether the verification requests, which would serve to extend the defendant’s time within which to pay or deny the claim, were pending. Contrary to the Supreme Court’s determination, the defendant’s request for additional verification tolled the defendant’s time within which to pay or deny the claim (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1], [2]) until it received all of the relevant information requested (see Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 100, mod 8 NY3d 294). Moreover, the affidavit and documentary evidence submitted by the defendant were in admissible form since the affiant stated her basis for knowledge of the facts and laid a proper foundation for introduction of the documents (see Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771, 772). Thus, the Supreme Court should have denied summary judgment as to the second cause of action.

The evidence submitted by the plaintiff in support of that branch of its motion which was for summary judgment on the third cause of action satisfied its burden of establishing, prima facie, its entitlement to judgment as a matter of law (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743). While the defendant initially denied that the plaintiff provided it with the requested verification material, it failed to rebut the plaintiff’s showing that the verification material was actually mailed to the defendant. A presumption of receipt was created by the certified mail receipt and the signed return receipt card, each bearing a notation to the relevant medical records, such that the defendant’s denial of receipt of the verification material was insufficient to raise a triable issue of fact (see Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981, 982; Matter of Fodor v MBNA Am Bank, N.A., 34 AD3d 473).

Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 2007 NY Slip Op 07690 (App. Div. 2d)

In addition, the defendant raised a triable issue of fact through its submission of the police accident report (hereinafter the PAR) that Gjelaj was intoxicated at the time of the accident and that such intoxication caused the accident. The PAR was properly considered by the Supreme Court under the business record exception to the hearsay rule to the extent that it was based upon the [*3]personal observations of the police officer present at the scene and under a business duty to make it (see CPLR 4518[a]; Yeargans v Yeargans, 24 AD2d 280, 282). Based upon the police officer’s personal observations and knowledge, Gjelaj’s vehicle left the roadway and struck a tree, and Gjelaj was arrested for driving while intoxicated. Thus, the Supreme Court properly denied the plaintiff’s motion for summary judgment.

However, the defendant failed to make out a prima facie showing on its cross motion for summary judgment (see generally Zuckerman v City of New York, 49 NY2d 557, 562). In the first instance, the defendant was unable to establish, prima facie, that Gjelaj was intoxicated at the time of the accident (see Lynch v Progressive Ins. Co., 12 AD3d 570, 571). The result of a blood alcohol test may be admitted on the issue of intoxication in litigation involving an exclusion in a no-fault policy provided that a proper foundation is laid (see Matter of Nyack Hosp. v Government Empls. Ins. Co., 139 AD2d 515). At bar, the defendant failed to lay a proper foundation for admission of the BAC report by proffering any evidence regarding the care in the collection of Gjelaj’s blood sample and its analysis (see Marigliano v City of New York, 196 AD2d 533; Fafinski v Reliance Ins. Co., 106 AD2d 88, 91-92, affd 65 NY2d 990). Thus, while the defendant raised a triable issue of fact regarding intoxication sufficient to defeat the plaintiff’s motion, on this record, it cannot establish intoxication as a matter of law. We note in this regard that although the BAC report was inadmissible to establish the defendant’s prima facie case on its cross motion (see generally Beyer v Melgar, 16 AD3d 532, 533), the Supreme Court properly considered it in opposition to the plaintiff’s motion (see Zuckerman v City of New York, 49 NY2d 557; Phillips v Kantor & Co., 31 NY2d 307).

In addition, the defendant failed to establish, prima facie, that Gjelaj’s alleged intoxication was the proximate cause of the accident (see Lynch v Progressive Ins. Co., 12 AD3d 570, 571; Scahall v Unigard Ins. Co., 222 AD2d 1070, 1071; North v Travelers Ins. Co., 218 AD2d 901, 902; Cernik v Sentry Ins., 131 AD2d 952). Since the defendant failed to make a prima facie showing, the Supreme Court should have denied that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action regardless of the sufficiency of the plaintiff’s opposing papers (see North v Travelers Ins. Co., 218 AD2d 901; see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).