A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2009 NY Slip Op 50583(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Andrea Phoenix, J.), entered December 17, 2007. The order, insofar as appealed from as limited by the brief, denied plaintiffs’ motion for summary judgment with respect to their no-fault claims which were denied by defendant on the ground that plaintiffs’ assignor failed to attend independent medical examinations.

Order, insofar as appealed from, reversed without costs, plaintiffs’ motion, insofar as it sought summary judgment upon the claims submitted by (1) plaintiff A.B. Medical Services, PLLC seeking to recover the sums of $443.92, $1,573.24, $376.32, $71.06, $125.44 and $130.32; (2) plaintiff D.A.V. Chiropractic, P.C. seeking to recover the sums of $235.90, $202.20 and $134.80; (3) plaintiff Lvov Acupuncture, P.C. seeking to recover the sums of $510.00, $510.00, $255.00, $510.00, and $170.00; and (4) plaintiff Sowell Chiropractic, P.C. seeking to recover the sum of $88.44, is granted, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion, arguing, insofar as is relevant to this appeal, that plaintiffs’ assignor failed to appear for independent medical examinations (IMEs). The court denied plaintiffs’ motion, finding that plaintiffs failed to make out a prima facie case. This appeal by plaintiffs ensued.

Plaintiffs established their prima facie entitlement to summary judgment by proving the [*2]submission of statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). We note that the affidavit submitted by plaintiffs’ billing manager demonstrated that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

Although defendant denied certain claims on the ground that plaintiffs’ assignor failed to attend scheduled IMEs (claims from A.B. Medical Services, PLLC in the amounts of $443.92, $1,573.24, $376.32, $71.06, $125.44 and $130.32; from D.A.V. Chiropractic, P.C. in the amounts of $235.90, $202.20 and $134.80; from Lvov Acupuncture, P.C. in the amounts of $510.00, $510.00, $255.00, $510.00, and $170.00; and from Sowell Chiropractic, P.C. in the amount of $88.44), the affidavits submitted by defendant were insufficient to establish proper mailing of the IME scheduling letters, which would give rise to a presumption that the items were received by the addressee (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, in light of defendant’s failure to timely deny said claims, it is precluded from interposing most defenses with respect to such claims, with exceptions not relevant in this case (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). As a result, defendant failed to raise a triable issue of fact with regard to said claims, and plaintiffs are entitled to summary judgment upon the claims submitted by (1) plaintiff A.B. Medical Services, PLLC seeking to recover the sums of $443.92, $1,573.24, $376.32, $71.06, $125.44 ftlineand $130.32; (2) plaintiff D.A.V. Chiropractic, P.C. seeking to recover the sums of $235.90, $202.20 and $134.80; (3) plaintiff Lvov Acupuncture, P.C. seeking to recover the sums of $510.00, $510.00, $255.00, $510.00, and $170.00; and (4) plaintiff Sowell Chiropractic, P.C. seeking to recover the sum of $88.44, and the matter is remanded to the District Court for the calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: April 01, 2009