December 22, 2003

King’S Med. Supply v Allstate Ins. Co. (2003 NY Slip Op 51680(U))

Headnote

The court considered the fact that this was a case to recover first-party no-fault insurance benefits, where the defendant insurer objected to the plaintiff's claim for medical equipment on the grounds that the supplier's prices exceeded the prevailing rates for such equipment in its geographical location. The main issue decided was whether the defendant insurer's objection to the claim was valid and whether the plaintiff's motion for summary judgment should be granted. The court held that as the defendant preserved no other proper defense to the action, the plaintiff's motion for summary judgment should have been granted. The matter was remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees.

Reported in New York Official Reports at King’S Med. Supply v Allstate Ins. Co. (2003 NY Slip Op 51680(U))

King’S Med. Supply v Allstate Ins. Co. (2003 NY Slip Op 51680(U)) [*1]

King’s Med. Supply v Allstate Ins. Co.

2003 NY Slip Op 51680(U)

Decided on December 22, 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This opinion is uncorrected and will not be published in the Official Reports.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 22, 2003

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

PRESENT:DOYLE, P.J., WINICK and SKELOS, JJ.
NO. 2003-49 S C

KING’S MEDICAL SUPPLY a/a/o Alberto Rodriguez, Jr., Appellant, –
against
ALLSTATE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the District Court, Suffolk County (H. Bergson, J.), entered October 23, 2002, denying its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted, 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 assigned first-party no-fault insurance benefits, defendant insurer objected to plaintiffs claim for medical equipment on the ground that the supplier’s prices exceeded the prevailing rates for such equipment in its “geographic location” (cf. 11 NYCRR 68.5 [b], Reg. No. 83). As defendant preserved no other proper defense to the action, plaintiff’s motion for summary judgment should have been granted for the reasons set forth in King’s Med. Supply Inc. v Allstate Ins. Co., (No. 2003-50 S C [decided herewith]).
Decision Date: December 22, 2003