93 A.D.2d 995 | N.Y. App. Div. | 1983
— Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Plaintiffs, Blue Cross and Blue Shield, allege in their complaint that on January 17,1980 Blue Cross paid $305.96 to Schuyler Hospital by mistake for services rendered to Elfriede Wheeler; that prior to July 31, 1980 Blue Shield paid $73.50 to Schuyler Medical Associates by mistake for services rendered to Elfriede Wheeler; and that Blue Cross and Blue Shield have demanded that the defendant repay the sums of money hereinabove set forth, but the defendant has refused and failed to do so and, therefore, owes $389.46 to the plaintiffs. Defendant’s answer denies the allegations of the complaint and alleges as an affirmative defense that defendant was and is not lawfully obligated to answer for the debt or default of Elfriede Wheeler and by reason thereof the complaint fails to state a cause of action. After the receipt of defendant’s answer, plaintiffs moved for summary judgment for the amounts alleged in the complaint and defendant cross-moved for summary judgment dismissing the complaint. In support of their motion for summary judgment, plaiñtiffs submitted an affidavit of their attorney and their business records. From the records, it appears that the plaintiffs made payments to the hospital and to the medical associates for hospital and medical services rendered to Elfriede Wheeler who was named as the wife of the defendant in a medical and hospital insurance policy issued to the defendant. The payments were made after the policy had expired for lack of payment of premiums. Special Term denied plaintiffs’ motion and granted summary judgment in favor of the defendant dismissing the complaint. In doing so, it stated that the plaintiffs did not pay the moneys to the defendant and absent any improper conduct by the insured,
