March 26, 2004

S & M Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50217(U))

Headnote

The insurer's partial, unsworn expert letter failed to support its medical-necessity defense to the provider's summary judgment motion. The provider sought assigned no-fault benefits for medical supplies and established a prima facie case in its moving papers under Amaze Med. Supply Inc. v Eagle Ins. Co. The insurer's submission lacked a factual basis and medical rationale for rejecting the claim. The Appellate Term, Second Department, modified the order to grant the provider summary judgment and remanded for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (h) (1) and 65.17 (b) (6).

Reported in New York Official Reports at S & M Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50217(U))

[*1]
S & M Supply v Kemper Auto & Home Ins. Co.
2004 NY Slip Op 50217(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This opinion is uncorrected and will not be published in the printed Official Reports.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: ARONIN, J.P., GOLIA and RIOS, JJ.
NO. 2002-1688 K C
S & M SUPPLY INC., a/a/o ALBERT SOMERSALL, Appellant,

against

KEMPER AUTO & HOME INS. CO., Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (M. Solomon, J.), dated October 10, 2002, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted for the principal sum of $1,018.47 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

Plaintiff sued to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. Plaintiff’s moving papers established a prima facie case for summary

SM-1


judgment (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff’s motion, defendant submitted only a portion of an unsworn letter from its medical expert which as submitted did not set forth a factual basis and medical rationale for the rejection of coverage on the ground that it was not medically necessary. Accordingly, plaintiff’s motion should be granted and the matter is 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] [1]; 65.17 (b) (6); see also St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).

SM-2


Decision Date: March 26, 2004

Similar decisions