In the Matter of the Estate of Lena Belich, Deceased

In the Matter of the Estate of Lena Belich, Deceased. [651 NYS2d 911] [MAJORITY] —In a proceeding, inter alia, for a decree disallowing a claim by the Department of Social Services of the City of New York against the estate of Lena Belich, Goldwater Memorial Hospital appeals from so much of an order of the Surrogate’s Court, Queens County (Nahman, S.), dated October 19, 1995, as denied its cross motion for summary judgment dismissing the petition insofar as asserted against it. Justice Rosenblatt has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]). Ordered that the order is affirmed insofar as appealed from, with costs payable by the appellant. In determining the parties’ respective motion and cross motion for summary judgment, the Surrogate’s Court properly entertained the issue of the alleged negligence of Goldwater Memorial Hospital (hereinafter Goldwater) (see, Dampskibsselskabet Torm A/ S v Thomas Paper Co., 26 AD2d 347, 352; see also, Costello Assocs. v Standard Metals Corp., 99 AD2d 227, 229; Rogoff v San Juan Racing Assn., 77 AD2d 831, 832). Material questions of fact exist regarding whether Goldwater was negligent in failing to file a claim on the decedent’s behalf for no-fault benefits under the Empire Insurance Company’s policy. Therefore, the Surrogate’s Court properly denied Goldwater’s cross motion for summary judgment dismissing the petition insofar as asserted against it (see, Zuckerman v City of New York, 49 NY2d 557). Bracken, J. P., Rosenblatt, Copertino and Altman, JJ., concur.