July 21, 2004

Amaze Med. Supply Inc. v Allstate Ins. Co. (2004 NY Slip Op 50833(U))

Headnote

The court considered the facts of a case in which a medical supply company sued an insurance company to recover first-party no-fault benefits for medical supplies furnished to the company's assignor. The main issues decided were whether the insurance company was justified in denying the claim for medical supplies and whether the denial was timely for other claims. The court held that the insurance company failed to provide sufficient evidence to defeat the medical supply company's motion for summary judgment, and that the insurance company had also failed to deny certain claims within the required time frame, thereby precluding the defense of medical necessity. As a result, the court granted the medical supply company's motion for partial summary judgment in the principal sum of $2,365 and remanded the matter for the calculation of statutory interest and assessment of attorney's fees.

Reported in New York Official Reports at Amaze Med. Supply Inc. v Allstate Ins. Co. (2004 NY Slip Op 50833(U))

Amaze Med. Supply Inc. v Allstate Ins. Co. (2004 NY Slip Op 50833(U)) [*1]

Amaze Med. Supply Inc. v Allstate Ins. Co.

2004 NY Slip Op 50833(U)

Decided on July 21, 2004

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 21, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:ARONIN, J.P., PATTERSON and GOLIA, JJ.
NO. 2003-1008 K C

AMAZE MEDICAL SUPPLY INC. a/a/o Hector Alvarez, Appellant,
against
ALLSTATE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered June 10, 2003, as denied its motion for partial summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff’s motion for partial summary judgment granted in the principal sum of $2,365 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff sues to recover first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff established a prima facie case by the submission of a properly
completed claim (see Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701 [U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Although defendant timely denied the claim for $765 within 30 days of its receipt (Insurance Law § 5106; 11 NYCRR 65.15 [g] [3]), the peer review report upon which the denial of benefits was predicated was not in admissible form and was therefore insufficient to defeat [*2]plaintiff’s summary judgment motion. An affirmation of a chiropractor does not constitute competent evidence (see CPLR 2106; see also Cubero v DiMarco, 272 AD2d 430 [2000]).
With respect to plaintiff’s claims for $670 and $930, defendant failed to deny them within 30 days of their receipt. Thus, defendant is precluded from raising the defense of medical necessity as to those claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Accordingly, inasmuch as defendant failed to raise a triable issue of fact, plaintiff’s motion should have been granted, and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $2,365 (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; see also St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: July 21, 2004