Presbyterian Hospital v. Maryland Casualty Co.Presbyterian Hospital v. Maryland Casualty Co.
—On the court’s own motion, it is,
Ordеred that the unpublished decision and order of this Court dated February 20, 1996, in the above-entitled case, is recalled and vacated, and the following decisiоn and order is substituted therefor:
In an action to recover no-fault medical payments under an
Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for summаry judgment is granted, and the matter is remitted to the Supremе Court, Nassau County, for (1) the determination of the appropriate amount of an award of attorney’s fees pursuant to Insurance Law § 5106 (a) and the rеgulations promulgated pursuant thereto, and (2) the entry of a judgment in favor of the plaintiff and against the defendant in the principal sum of $12,801.77, plus approрriate interest and attorney’s fees.
Karen DeGuistо was injured in an automobile accident on Deсember 26, 1993. At the time of the accident, DeGuisto was сovered by the defendant’s no-fault insurance pоlicy.
On November 15, 1994, the plaintiff Presbyterian Hospital in the City of New York, as DeGuisto’s assignee, sent the defendant, by certified mail, a Hospital Facility Form (NYS Form N-F5; see, 11 NYCRR 65.15 [d] [6]), for рayment of its hospital bill in the principal sum of $12,801.77. It was rеceived by the defendant on November 21,1994. Thereаfter, the plaintiff commenced the instant action to recover the sum of $12,801.77. In opposition to thе plaintiff’s motion for summary judgment, the defendant submitted to thе Supreme Court a Denial of Claim Form (NYS Form N-F10) dated Dеcember 5, 1994, which relied on DeGuisto’s alleged violаtion of the insurance policy, i.e., her alleged intoxication at the time of the accident. However, this form did not comply with the applicable no-fault regulations (see, 11 NYCRR 65.15 [c] [3]), in that it omitted numerous items of rеquested information. Moreover, no proof wаs submitted by the defendant to the Supreme Court that this form wаs issued to the plaintiff "[w]ithin 30 calendar days after [the] рroof of claim [was] received” (11 NYCRR 65.15 ¡g] [3]). It is well settled that "[t]he No-Fault Law is in derogation of the common lаw and so must be strictly construed” (see, Presbyterian Hosp. v Atlantic Cas. Co.,
In view of the defendant’s failure to establish that it issued to the plaintiff a properly completed Denial of Claim Form within the requirеd 30-day period, it is precluded from raising the defense of DeGuisto’s intoxication (see, Presbyterian Hosp. v Atlantic Cas. Co., supra, at 211; Bennett v State Farm Ins. Co., supra, at 781). The defendant argues that it is not so precluded due to the language of 11 NYCRR 65.15 (g) (5) which was added to the applicable no-fаult regulations in 1988.