March 26, 2004

Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50211(U))

Headnote

The relevant facts considered by the court were that the plaintiff sought to recover first-party no-fault benefits for medical supplies provided to an injured assignor, and that the defendant did not pay or deny the claims within 30 days. The main issue decided was whether the plaintiff was entitled to summary judgment, and the court held that the plaintiff had established its prima facie entitlement to summary judgment by showing that it had submitted complete proofs of claims to the defendant which the defendant did not pay or deny within 30 days. The holding of the case was that the plaintiff's motion for summary judgment was granted in the principal sum of $1,685.31, and the matter was remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

Reported in New York Official Reports at Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50211(U))

Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50211(U)) [*1]

Amaze Med. Supply v Allstate Ins. Co.

2004 NY Slip Op 50211(U)

Decided on March 26, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-815 K C

AMAZE MEDICAL SUPPLY INC. a/a/o Derrick Darlington, Appellant,
against
ALLSTATE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (L. Baily-Schiffman, J), entered on April 9, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $1,685.31 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff instituted suit to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. In our opinion, plaintiff established its prima facie entitlement to summary judgment by showing that it submitted complete proofs of claims to defendant which defendant did not pay or deny within 30 days (11 NYCRR 65.15 [g]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term,
2d & 11th Jud Dists]). Thus, pursuant to Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274, 285 [1997]), the insurer is precluded from raising defenses such as lack of medical necessity (see Mingmen Acupuncture v Liberty Mutual, NYLJ, Apr. 10, 2002 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff was entitled to summary judgment (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]).

The matter is accordingly remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (see Insurance Law § 5106 [a];
11 NYCRR 65.15 [h]; 65.17 [b] [6]; St.Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]). [*2]
Decision Date: March 26, 2004