December 24, 2003

Damadian Mri In Garden City v Liberty Mut. Ins. Co. (2003 NY Slip Op 51702(U))

Headnote

The relevant facts in this case were that the plaintiff was seeking first-party no-fault medical benefits for treatment rendered to its assignor. The main issue decided by the court was whether the plaintiff was entitled to summary judgment in the amount of $1,571.80, and whether the defendant was precluded from raising the defense of lack of medical necessity due to failure to timely deny the plaintiff's claim. The holding of the court was that the plaintiff's proof of its claim as submitted to the defendant was sufficient to establish its prima facie case for summary judgment. The court also held that the defendant, by failing to timely deny the plaintiff's no-fault claim within 30 days of receipt, was precluded from raising the defense of lack of medical necessity. Consequently, the plaintiff's cross-motion was granted, and the matter was remanded to the court for the calculation of statutory interest and an assessment of attorney's fees due on $1,571.80.

Reported in New York Official Reports at Damadian Mri In Garden City v Liberty Mut. Ins. Co. (2003 NY Slip Op 51702(U))

Damadian Mri In Garden City v Liberty Mut. Ins. Co. (2003 NY Slip Op 51702(U)) [*1]

Damadian MRI In Garden City v Liberty Mut. Ins. Co.

2003 NY Slip Op 51702(U)

Decided on December 24, 2003

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This opinion is uncorrected and will not be published in the Official Reports.

Decided on December 24, 2003

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

PRESENT:WINICK, J.P., LIFSON and SKELOS, JJ.
NO. 2002-750 S C

DAMADIAN MRI IN GARDEN CITY, P.C., as Assignee of KEVIN BROWN, Respondent,
against
LIBERTY MUTUAL INSURANCE COMPANY, Appellant.

Appeal by defendant from an order of the District Court, Suffolk County (P. Barton, J.), entered March 22, 2002, denying its motion to compel responses to its discovery demands and granting plaintiffs cross motion for summary judgment in the principal sum of $1,571.80.

Order unanimously affirmed without costs and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault medical benefits for treatment rendered to its assignor, plaintiff cross-moved for summary judgment. For the reasons set forth in Damadian MRI in Elmhurst. P.C. v Liberty Mut. Ins. Co. (No. 2002-999 S C, [decided herewith]), plaintiffs proof of its claim as submitted to defendant sufficed to establish its prima facie case in summary judgment. Inasmuch as defendant, failed to timely deny plaintiffs no-fault claim within 30 days of receipt (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8[c]), it is precluded from raising the defense of lack of medical necessity (see Central Gen. Hosp. v Chubb Group of Ins. Cos. as., 90 NY2d 195, 199 [1997]).

Accordingly, plaintiffs cross motion was properly 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 $1,571.80 (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995].
Decision Date: December 24, 2003