Filed Date: 3/15/2004
Status: Precedential
Modified Date: 11/1/2024
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it is further,
Ordered that the judgment is reversed, on the law, without costs or disbursements, those branches of the plaintiffs’ motion which were for summary judgment on their first, second, and fifth causes of action are denied, those branches of the defendant’s cross motion which were for summary judgment dismissing the first and fifth causes of action are granted, and the order dated December 20, 2002, is modified accordingly.
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 241, 248 [1976]). 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]).
This action was commenced by three hospitals to recover unpaid no-fault benefits from the defendant Progressive Casualty Insurance Company (hereinafter Progressive), arising from five separate automobile accidents involving persons and/or vehicles it allegedly insured. The Supreme Court granted the plaintiffs’ motion for summary judgment.
The Insurance Law and regulations promulgated thereunder provide that “[w]ithin 30 calendar days after proof of claim is received, the insurer shall either pay or deny the claim in whole or in part” (11 NYCRR 65.15 [g] [3]; see Insurance Law § 5106 [a]). This 30-day period may be extended by, inter aha, a timely demand by the insurance company for further verification of a claim (see 11 NYCRR 65.15 [d] [1]; [e]). Such a demand must be
Applying these rules to the facts of this case, the Supreme Court correctly granted those branches of the plaintiffs’ motion which were for summary judgment on the third and fourth causes of action concerning the Sharon Brown and Richard Bochert claims. The plaintiffs demonstrated their entitlement to summary judgment as to each of those causes of action by proving that they submitted the requisite documents for payment, but Progressive neither paid nor denied the claims, nor requested verification within the requisite periods. In opposition, Progressive failed to demonstrate the existence of a triable issue of fact. As to the Brown claim, Progressive offered only conclusory hearsay assertions of telephonic verification requests, unsupported by an affidavit of a representative with personal knowledge. As to the Bochert claim, Progressive proffered prior verification requests relevant to a different claim.
The Supreme Court erred in granting the plaintiffs’ motion as to the Byung Park claim pled in the second cause of action. In opposition to the plaintiffs’ prima facie showing, Progressive demonstrated the existence of a triable issue of fact as to whether the verification requests it submitted related to the same claim as was pleaded in the second cause of action.
We do not consider Progressive’s contention that the five claims herein were improperly joined, as this contention was raised for the first time on appeal (see Matter of DelGaudio v Aetna Ins. Co., 262 AD2d 641 [1999]; M.S.N.S. Holding Corp. v City of New York, 253 AD2d 793, 794 [1998]; Matter of Matarrese v New York City Health & Hosps. Corp., 247 AD2d 475, 476 [1998]; cf. Weiner v MKVII-Westchester, 292 AD2d 597, 598 [2002]; Libeson v Copy Realty Corp., 167 AD2d 376, 377 [1990]). S. Miller, J.P., H. Miller, Crane and Rivera, JJ., concur.