First Application of Etienne

Westchester Med. Ctr. v Allstate Ins. Co., 2013 NY Slip Op 08616 (2d Dept. 2013)

“Contrary to the primary argument advanced by the defendant insurance company, the plaintiff Westchester Medical Center, as assignee of Paul Knable (hereinafter the hospital), made a prima facie showing of entitlement to judgment as a matter of law on the first cause of action (see Viviane Etienne Medical Care, P.C., as assignee of Alem Cardenas v Country-Wide Ins. Co., _______ AD3d _______ [2013 Slip Op 08430 [2d Dept 2013]).  In opposition, the defendant failed to raise a triable issue of fact as to whether, after receiving the hospital’s NF-5 claim form, the 30-day period within which to pay, deny, or seek verification of the no-fault claim was extended or tolled indefinitely due to the hospital’s failure to comply with a certain request for verification.”

I am thinking Plaintiff presented the billing affidavit of one of its affiants who either said the he submitted the entire medical records of the hospital or that he never received any verification requests.  This is different from Mary Immaculate v. Allstate and Amaze v. Eagle days where all the affiant had to say was that more than 30-days elapsed and payment in full has not been made.  I think the plaintiff bar was hoping Etienne would do that, but that is not the case.  If a prima facie case made its way to other 3 departments, would they hold true to Mary Immaculate v. Allstate (which they are currently following) or would they follow Etienne, which continues to incorporate an Ave T. v. Auto One analysis?