Hospital for Joint Diseases v. New York City Transit Authority

In an action to recover no-fault medical payments under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated July 9, 2004, which denied its motion for summary judgment and granted the defendant’s cross motion for summary judgment dismissing the complaint. Ordered that the order is modified, on the law, by deleting the provision thereof granting the cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements. In support of its motion for summary judgment, the plaintiff submitted evidentiary proof that the defendant self-insurer did not respond to its claim dated November 20, 2003, for no-fault medical benefits within 30 days as required by 11 NYCRR 65-3.8 (c). However, the evidence submitted by the defendant in opposition to the motion and in support of its cross motion, while insufficient to establish its prima facie entitlement to judgment as a matter of law, was sufficient to raise a triable issue of fact as to whether the claim was timely denied (see Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2004]; 377 Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Florio, J.P., Schmidt, Rivera and Lifson, JJ., concur.