April 5, 2011

Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50512(U))

Headnote

The court considered a case involving Devonshire Surgical Facility and Carnegie Hill Orthopedic Services, P.C. seeking to recover first-party no-fault benefits from American Transit Insurance Company. The plaintiffs established their prima facie entitlement to summary judgment on their respective claims for $3,000 and $11,929.08, as defendant's documentary submissions showed that the claims were overdue. The defendant, who was precluded under a stipulation from offering certain evidence pertaining to its defense of lack of medical necessity, failed to raise a triable issue of fact in opposition to the plaintiffs' motion for summary judgment. As a result, the court reversed the lower court's order and granted summary judgment in favor of the plaintiffs for the respective amounts, with the clerk directed to enter judgment accordingly.

Reported in New York Official Reports at Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50512(U))

Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50512(U)) [*1]

Devonshire Surgical Facility v American Tr. Ins. Co.

2011 NY Slip Op 50512(U) [31 Misc 3d 128(A)]

Decided on April 5, 2011

Appellate Term, First Department

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

As corrected in part through April 12, 2011; it will not be published in the printed Official Reports.

Decided on April 5, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570945/10.

Devonshire Surgical Facility and Carnegie Hill Orthopedic Services, P.C., a/a/o Norma Munoz, Plaintiffs-Appellants, – –
against
American Transit Insurance Company, Defendant-Respondent.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 4, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $11,929.08. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, plaintiffs Carnegie Hill Orthopedic Services, P.C. and Devonshire Surgical Facility established their prima facie entitlement to summary judgment on their respective claims for $11,929.08, and $3,000 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Specifically, defendant’s documentary submissions established its receipt of plaintiffs’ claims and that the claims were overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).

In opposition to the plaintiffs’ motion for summary judgment, defendant, which was precluded under a so-ordered stipulation from offering certain evidence pertaining to its defense of lack of medical necessity (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]), failed to raise a triable issue of fact (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d at 743; Devonshire Surgical Facility, supra). Accordingly, plaintiffs were entitled to judgment in their favor.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 05, 2011