May 4, 2007

Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co. (2007 NY Slip Op 27173)

Headnote

The court considered the fact that the defendant insurer had admitted receiving the no-fault claims and had made partial payment on the claims. The main issue decided was whether the plaintiff had submitted proof that the claims had been mailed and received, and that they were overdue. The holding of the case was that the defendant insurer was not allowed to argue that the plaintiff had failed to submit the required proof, and that judgment was properly entered in favor of the plaintiff. The court also decided that the defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignment.

Reported in New York Official Reports at Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co. (2007 NY Slip Op 27173)

Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co.

2007 NY Slip Op 27173 [16 Misc 3d 8]

Accepted for Miscellaneous Reports Publication

AT1

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

As corrected through Wednesday, July 18, 2007

[*1]

Fair Price Medical Supply, Inc., as Assignee of Dorismond Frantz, Respondent,
v
St. Paul Travelers Insurance Company, Appellant.

Supreme Court, Appellate Term, First Department, May 4, 2007

APPEARANCES OF COUNSEL

Patrick Colligan, White Plains (Michael J. Palumbo of counsel), for appellant. Edward Shapiro, P.C., Wantagh (Steven F. Palumbo of counsel), for respondent.

{**16 Misc 3d at 114} OPINION OF THE COURT

Per Curiam.

Order, dated January 5, 2006, affirmed, with $10 costs.

In response to plaintiff’s interrogatories, defendant insurer admitted that it received the no-fault claims at issue and made partial payment on the claims. Inasmuch as defendant’s verified answers to the interrogatories constituted admissions of a party, which are admissible as evidence (see Bigelow v Acands, Inc., 196 AD2d 436 [1993]), defendant may not now be heard to argue that plaintiff failed to submit proof that the claims had been mailed and received, and that they were overdue (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). To the extent that Empire State Psychological Servs., P.C. v Travelers Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51869[U] [2006]) supports a contrary conclusion, we decline to follow it.

Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignment (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Laufer v Lumberman’s Mut. Cas. Co., 9 Misc 3d 133[A], 2005 NY Slip Op 51632[U] [2005]). Since defendant failed to assert any other defenses, judgment was properly entered in favor of plaintiff.

McKeon, J.P., McCooe and Davis, JJ., concur.