SUPREME COURT - STATE OF NEW YORK. PRESENT: HON. PETER B. SKELOS, Justice. TRIALIIAS PART 25 NASSAU COUNTY

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1 SUPREME COURT - STATE OF NEW YORK PRESENT: HON. PETER B. SKELOS, Justice. THE NEW YORK AND PRESBYTERIAN HOSPITAL, a/a/o SEUNG PARK, SANDRA GONZALEZ; MARY IMMACULATE HOSPITAL, a/a/o BENJAMIN NORRIS; THE NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS, a/a/o RAFAEL ESTEVEZ, TRIALIIAS PART 25 NASSAU COUNTY Plaintiffs, -against- TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY,. MOTIONS # 01,02 INDEX # 45 12/02 MOTION SUBMITTED: JULY 8,2002 Defendant. The following papers read on this motion: Notice--of Motion/Order to Show Cause...1 Cross Motion/Answering Affidavits...2 Reply Affidavits...3,4 Plaintiffs move for surnmary judgment on four no-fault claims. The fast cause of action was withdrawn prior to submission. The motion is denied with respect to the second, third and fourth causes of action. The cross-motion by defendant Travelers Property Casualty Insurance Company for summary judgment dismissing the complaint is granted in its entirety, and the complaint is dismissed. Plaintiffs brought this action seeking to recover under Insurance Law $5106(a) as assignees of unpaid no-fault benefits and attorneys fees, alleging that defendant failed to pay or deny the subject claims within 30 days after their receipt, and is therefore precluded from raising any defenses.

2 Second Cause of Action: Plaintiff hospital seeks to recover for medical services provided to claimant and assignor Sandra Gonzalez for injuries sustained in an accident which occurred on January 2, Plaintiff alleges that defendant is precluded from offering any defense based upon its failure to pay or deny the claim within thirty days after receipt thereof. Defendant asserts that it has no record of a policy issued to Sandra Gonzalez living at 1491 W. Av. Bronx NY 10462, the claimant s address. Travelers submits the affidavit of underwriter Patricia Gibson dated June 6,2002, who avers that she performed a computer search of Traveler s Assigned Risk, Non-Standard, Voluntary and Commercial Policy Records for the past ten years to determine any and all policies Travelers issued to anyone by the name of Sandra Gonzalez or Sandro Gonzalez. Gibson states that she performed an Alpha or phonetic search including both first and last names, and that no such person was insured at the address given. She annexes the purged printouts of her search. Plaintiff is correct that an insurer s failure to pay no-fault benefits within the 30-day requirement renders benefits overdue with overdue payments bearing interest at a rate of 2% per month, and a claimant entitled to attorney s fees (Presbyterian Hosp. in the City of N. Y. v Maryland Cas. Co., 90 NY2d 274,278, citations omitted). However, [sltrict compliance with the time requirements of both the statute and regulations may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199). A lack of coverage defense is never waived by a failure to assert it in a notice of disclaimer (id. at 201). Plaintiff does not dispute the foregoing authority or provide evidence of Gonzalez coverage, but rather contests the adequacy of d 2

3 suggests that defendant should have cross-referenced the search using Gonzalez birth date or address or policy number, and that the phonetic search is patently insufficient. In just what regard the search is patently insufficient is not apparent. Cross-referencing would have narrowed the search and produced fewer hits, not more. The search conducted by defendant produced the widest range of hits, pulling every Gonzalez, and variations on the name Sandra. The search identified almost one hundred persons, many named Sandra Gonzalez, and numerous variations on the name. Gibson s search produced 33 standard policy holders, four named Sandra Gonzalez, one of whom lived in the Bronx, but at a different address than the claimant and with a different policy number. None of the almost one hundred persons found in the search had the same address as plaintiff s assignor. It is also noted that all the policy numbers listed in the search contain nine digit numbers and thus none match assignor Gonzalez alleged policy number which contains only seven digits. Under the circumstances, plaintiff has failed to raise a question of fact concerning coverage. Third Cause of Action: Travelers also asserts that it cancelled the policy of Norris Benjamin (s/h/a Benjamin Norris), the assignor of plaintiff Mary Immaculate Hospital, effective August 8,200l at 12:Ol a.m. for nonpayment of premium. This cancellation became effective fifteen hours before the subject accident. In response, the plaintiff hospital does not contest the cancellation or deny receipt of the cancellation notice by the insured, but rather attempts to establish that defendant s evidence is insufficient to show that the cancellation occurred prior to the accident. Plaintiff contends that the handwritten time 12:Ol a.m. on the Cancellation Notice, indicating the time the cancellation was effective on August 8,2001, is insufficient to sustain defendant s burden of proof, and that the police report which indicates that the accident occurred at 3:05 p.m. on the cancellation date contains ody 3

4 hearsay and is inadmissible. Thus plaintiff contends that the issue of coverage is not resolved as the defendant has not established that the accident occurred after the cancellation was effective. The police report is hearsay but, contrary to plaintiffs contention, it is admissible under the business record exception of CPLR 4518(a) inasmuch as the witnesses who gave the statements were... at the scene with a duty to report... to the recording officer (Lindsay v Academy Broadway Corp., 198 AD2d 641,642; Johnson v Lutz, 253 NY 124,128 [information derived from another who made the communication under the sanction of duty or other obligation is admissible in a business record]). All parties to an accident resulting in personal injury or property damage are under a duty to report the accident to the police (Vehicle & Traffic Law 8 600). VTL $ 600 requires a motor vehicle operator involved in an accident, whether culpable or not, to remain at the scene of the accident, identify himself, and report the accident to the police (People v Samuel, 29 NY2d 252). Thus both drivers involved in the subject accident had a duty to report the accident to police, which duty minimally includes the time and place of the accident. The court also finds plaintiffs arguments regarding defendant merit. Defendant submitted a copy of the cancellation notice and s cancellation evidence without the necessary certificate of mailing, stamped by a post-office employee, showing that... a notice _ of cancellation was sent to the insured at the address listed on the policy (Hughson v National Grange Mut. Ins. Co., 113 AD2d 103 1, app dsmd 67 NY2d 647). Thus defendant established that the policy was effectively canceled pursuant to Vehicle and Traffic Law (1) and was not in effect at the time of the accident (id.). VTL (l)(b) provides that a copy of the notice of termination and the certificate of mailing, when kept in the ordinary course of the insurer s business, shall constitute conclusive proof of compliance with the mailing requirements of this chapter. 4

5 In an affidavit dated June 10,2002, Patricia Gibson avers that the cancellation was effective at 12:Ol a.m. This sworn statement, confirming the time on the notice itself, is sufficient to definitively establish the hour of cancellation. Plaintiff offers no basis to controvert the affidavit or support any inference that the time of the subject cancellation deviated from the 12:Ol a.m. time normally applicable to insurance policy cancellations (see, Matter of State Farm Mut. Auto. Ins. Co. [Rickard], 250 AD2d 896,897; 18th Ave. Realty Corp. v Aetna Gas. and Sur. Co., 240 AD2d 287,288; Spring Brook Riding Academy v National Grange Mut. Ins. Co., 97 AD2d 754). As plaintiff has presented no evidence showing the policy was not properly cancelled or was cancelled at a time other than that stated in the cancellation notice and the Gibson affidavit, no issue of fact is presented. Fourth Cause of Action: With respect to the final cause of action, defendant offers proof that it requested additional verification within ten days of receiving the no-fault claim of New York Hospital Medical Center of Queens as assignee of Rafael Estevez. Travelers Representative, stating that she is assigned to the submits the affidavit of Molly Wall, a Claim claim and is familiar with the action. She avers that a request for further verification was sent on December She also avers that a second notice was sent on January 28,2001, within ten days of receipt of the claim. 28,2002 in accordance with the no-fault law, and that no verification has been received. Thus the insurer s time to pay or deny has not yet commenced. She submits copies of the letters sent. The second letter is a copy of the first with a stamp bearing the legend SECOND NOTICE and the date JAN In response, plaintiff hospital contends that the affidavit constitutes hearsay, arguing that Wall does not claim to be the handler assigned to the file. The court rejects this argument as unfounded. Rather than pay or deny a no-fault claim within thirty days, an insurer may seek verification SO 5

6 long as it does so within 10 days of receipt of the claim (11 NYCRR [d][2]). If the requested r verification is not received within 30 days, the insurer must follow-up either by telephone call or mail (11 NYCRR [e][2]). If verification is not furnished pursuant to an insurer s timely request and follow-up, the 30 day period to pay or deny is not triggered, as [a] claim need not be paid or denied until all demanded verification is provided (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553,554, citing 11 NYCRR 65.15[g][l][i]). As noted, the Wall affidavit does not constitute hearsay, Travelers timely requested verification, and in the absence of a response, the thirty day time period has not begun to run for payment. Accordingly, the fourth cause of action is dismissed. It is noted that counsel for plaintiff has alleged that he does not have a record of having received the documented requests for verification. This equivocal statement is insufficient to constitute a denial of receipt, and thus no factual issue regarding non-receipt is raised. For the above-stated reasons, the motion is denied, the cross-motion granted in its entirety and the complaint dismissed. Dated: November 4,2002 PtiER B. SKELOS, J.S.C.