SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (J. Sullivan, J.), entered August 13, 2002, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $1,925, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees and for all further proceedings on the remaining portion of the claim in accordance with the decision herein; as so modified, affirmed without costs.

Plaintiff, a medical supply house, commenced this action to recover first-party no-fault benefits for medical equipment furnished its assignor. Plaintiff subsequently moved for
summary judgment on its two claims: one for $795 (submitted January 31, 2001) and the other for $1,220 (submitted March 1, 2001).

After plaintiff established a prima facie case for summary judgment by establishing that it submitted complete proofs of claim and the amount of the loss (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). With respect to the $795 claim, defendant conceded that it failed to timely pay or deny the claim within 30 days of the date plaintiff alleged that it should have been in receipt of the mailed claim [*2]forms (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]), but argued only that it never received the proof of claim. Upon its failure to rebut the presumption of receipt that arose upon plaintiff’s proof of proper mailing (e.g Kihl v Pfeffer, 94 NY2d 118 [1999]), summary judgment should have been granted as to said claim.

With respect to the second claim for $1,220, defendant argued only that its denial was both timely and proper because the assignor failed to cooperate with its verification request in the form of an examination under oath (EUO), as permitted by the Insurance Regulations then in effect and
required by the terms of the insurance policy. However, at the time plaintiff’s claims were filed, EUOs were not available as a form of verification. The provision requiring the injured person to appear for an EUO was not in effect until April 5, 2002 (see 11 NYCRR 65-3.5 [e]). The relevant Insurance Regulation in effect at the time of the plaintiff’s submission of the claims required the injured person to submit to an independent medical examination (IME), but contained no specific reference to an EUO (see 11 NYCRR 65.12). Since there was no provision authorizing such a procedure, defendant’s request that plaintiff submit to an EUO did not toll the 30-day period within which it was required to pay or deny the claim. Nor may defendant base its right to an EUO on the policy provisions providing for “cooperation” because the no-fault endorsement, an “internally complete and . . . distinct part of the insurance policy, . . . cannot be qualified by . . . conditions . . . of the liability portions of the policy” (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]; see also A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]).

In light of the foregoing, plaintiff would normally be entitled to the granting of its motion for summary judgment in its entirety. It is noted, however, that the documents which plaintiff included as proof in support of its motion for summary judgment revealed that the medical
equipment prescribed for plaintiff’s assignor did not include the TENS belt ($90) which was listed in plaintiff’s claim as well as in the receipt of items delivered to plaintiff’s assignor. While defenses based on defects in the proof of claim are generally precluded if not timely asserted, plaintiff, having introduced an issue of fact which, if true, amounts to a complete defense to a portion of the claim, should be estopped from invoking the preclusion rules to avoid a defense that the cost of unprescribed medical equipment is not a recoverable no-fault benefit (Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Accordingly, the compensation awarded to plaintiff should be reduced by the amount billed for the unprescribed item.

Thus, plaintiff’s motion for summary judgment should have been granted to the extent of awarding it partial summary judgment in the sum of $1,925. The matter is accordingly remanded to the court below for a calculation of the statutory interest on $1,925, that portion of the claim for which summary judgment is granted, an assessment of attorney’s fees due on $1,925 (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [iii], [v]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.
Decision Date: April 14, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County

(A. Agate, J.), entered January 31, 2003, granting plaintiff’s motion for summary judgment in the principal sum of $1,472, and denying its motion for summary
judgment dismissing the complaint.

Order unanimously modified by denying plaintiff’s motion for summary judgment and granting defendant’s motion to the extent of awarding it partial
summary judgment dismissing plaintiff’s $120 claim; as so modified, affirmed without costs.

In or about June 2002, plaintiff commenced this action to recover first- party no-fault benefits for medical equipment it provided to its assignor pursuant to
Insurance Law § 5101 et seq., as well as statutory interest and attorney’s fees.
Thereafter, plaintiff moved for summary judgment on its $586 and $886.50 claims. Defendant opposed the motion and moved for summary judgment dismissing the complaint. By order entered January 31, 2003, the court below granted plaintiff’s motion for the amount demanded in the complaint ($1,472 rather than $1,472.50)
and denied defendant’s motion.

A review of the record indicates that plaintiff established its prima
facie entitlement to summary judgment on its $586 claim, as well as $766.50 of its $886.50 claim, by showing that it submitted complete proofs of claims which
defendant did not pay or deny within 30 days (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). We find [*2]that inasmuch as neither plaintiff’s medical reports nor its
prescriptions mention a “TENS accessory kit,” for which plaintiff seeks $120, plaintiff failed to submit a properly completed claim form therefor and did not establish its
prima facie entitlement to summary judgment for $120. The burden then shifted to defendant to demonstrate a triable issue of fact with respect to the $586 claim and
the $766.50 sum (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The record indicates that defendant denied both claims based on the
assignor’s failure to appear at medical examinations. Inasmuch as the assignor
never appeared for an examination, we find that defendant raised a triable issue of fact as to said claims (see Millennium Med. Diagnostics v Liberty Mut. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists], affd 306 AD2d 388 [2003]; cf. Park Health Ctr. v Liberty Mut. Ins. Co., 191 Misc 2d 91, 92-93 [2001]). We note that although the denial for the $886.50 claim indicates that it was denied due to plaintiff’s failure to make said claim within 180 days of the rendered services (see 11 NYCRR 65.11 [m] [3]), neither plaintiff’s nor defendant’s motion papers addressed this issue in the court below, and defendant has not raised this issue in its appellate brief. Consequently, said issue is deemed abandoned and will not be considered by this court (see Baliva v State Farm Mut. Auto Ins. Co., 286 AD2d 953 [2001]).

A review of the record further indicates that defendant failed to establish its entitlement to summary judgment dismissing the complaint in its entirety on the ground that the assignor failed to appear for medical examinations (Millennium Med. Diagnostics v Liberty Mut. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists], affd 306 AD2d 388, supra). However, inasmuch as plaintiff did not submit a properly completed claim form for the TENS accessory kit, it did not establish its prima facie entitlement thereto (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29,
2003 [App Term, 2d & 11th Jud Dists], supra), and defendant is not required to pay said
claim (see Insurance Law § 5101 et seq.; 11 NYCRR 65.15 [g]). Consequently, that part of defendant’s motion seeking dismissal of the $120 claim for the TENS accessory kit is granted. Defendant’s remaining contentions lack merit.
Decision Date: April 14, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County

(D. Kurtz, J.), entered on September 25, 2002, which denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $10,002.86 and by remanding the matter to the
court below for further proceedings in accordance with the decision herein; as so modified, affirmed without costs.

Plaintiff sues to recover the sum of $13,573.32 representing first-party no-fault benefits for medical supplies it provided to the injured assignors. In our opinion, plaintiff’s motion for summary judgment should have been granted to the extent of awarding plaintiff partial summary judgment in the sum of $10,002.86, representing those claims which were not denied by defendant until more than 30 days after plaintiff had submitted them (11 NYCRR 65.15 [g] [3]) since, as to said claims, the insurer is precluded from raising the proffered defenses [*2](Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Inasmuch as plaintiff has established a prima facie case, it was entitled to partial summary judgment with respect thereto (see Amaze Med. Supply Inc. v Eagle Ins. Co., supra) including statutory interest and attorney’s fees (see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641). The matter is accordingly remanded to the court below for a calculation of such interest and attorney’s fees (see Insurance Law § 5106 [a]; former 11 NYCRR 65.15 [h] [1];
65.17 [b] [6]).

However, plaintiff’s motion for summary judgment was properly denied as to the remaining claims which defendant had timely denied in accordance with the
Insurance Regulations. Insurance Regulation 11 NYCRR 68, Appendix 17-C, Part E (b) (1) provides:

“(b)(1) For medical equipment and supplies (e.g. TENS units, soft cervical collars) provided by a physician or medical equipment supplier, the maximum permissible charge is 150% of the documented cost of the equipment to the provider.”

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (A. Schack, J.), entered October 7, 2002, denying its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $1,347.50, and matter remanded to the court below for a calculation of statutory interest and an assessment of
attorney’s fees, and for all further proceedings on the remaining portion of the claim in accordance with the decision herein; as so modified, affirmed without costs.

For the reasons set forth in Amaze Med. Supply Inc. v Eagle Ins. Co. (NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), plaintiff established a prima facie case by its properly submitted proof of claim (e.g. Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Lack of medical necessity is a defense to an action to recover no-fault benefits, which an insurer may assert pursuant to a timely denial, based on a medical examination or a sufficiently detailed peer review report (Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Defendant failed to accompany its otherwise timely claim denial with the requisite proof, and in the absence of any other defense raised in the denial form including the purported defense, raised for the first time in opposition to the summary judgment motion, that the benefits sought for medical equipment provided to the assignor exceeded 150 percent of the [*2]equipment’s cost from the supplier (11 NYCRR 68, Appendix 17-C, Part E [b] [1]), defendant is precluded (cf. Amaze Med. Supply Inc. v Eagle Ins. Co., supra).

However, in addition to its claim forms, plaintiff’s proof in support of its motion for summary judgment contained documents that had not previously accompanied said forms. The documents revealed that the prescribed medical equipment did not include two items, an EMS belt ($78) and an EMS kit ($120), listed in the invoices of supplies delivered and for which benefits were claimed. While the failure timely to object to defects in the proof of claim waives all such objections thereto (New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699,
701 [2001]), having interjected an issue of fact which, if true, amounts to a complete defense to a portion of the claim, plaintiff should be estopped from invoking waiver (or preclusion) to avoid a defense that the cost of unprescribed medical equipment is not a recoverable no-fault benefit (see Amaze Med. Supply Inc. v Eagle Ins. Co., supra).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $1,347.50, the portion of the claim for which summary judgment is granted (Insurance Law § 5106 [a]; 65.15 [h] [1]; 11 NYCRR 65.17 [b] [6]; see St. Clare’s Hosp. v Allstate Ins Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.
Decision Date: April 09, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered March 19, 2003, denying its motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment deemed an appeal from the judgment, entered pursuant to said order, on May 14,

2003, awarding plaintiff the principal sum of $1,791.73 (see CPLR 5501 [c]).

Judgment unanimously reversed without costs, so much of the order, entered March 19, 2003, as granted plaintiff’s cross motion for summary judgment vacated, plaintiff’s cross motion denied and matter remanded to the court below for
all further proceedings.

Plaintiff commenced this action to recover $1,791.73, in first-party no-fault benefits for medical services it rendered to its assignor, as well as statutory interest and attorney’s fees, pursuant to Insurance Law § 5101 et seq. Thereafter, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered March 19, 2003, the court
below denied the motion and granted the cross motion. A judgment was
subsequently entered pursuant to said order on May 14, 2003 awarding plaintiff the sum of $2,485.08. [*2]

Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment inasmuch as it did not show that the assignor made an assignment to plaintiff Damadian MRI in Garden City, P.C. The assignment form herein names the assignee merely as “Damadian MRI.” Although
the assignment demonstrates plaintiff’s standing to sue sufficient to withstand a
motion to dismiss (see e.g. Neuro Care Assoc. v State Farm Ins. Co., NYLJ, June
25, 1998 [App Term, 2d & 11th Jud Dists]), it raises a question of fact as to whether plaintiff is the same entity as the one named in the assignment.

We note that defendant’s notices for examinations under oath did not
toll the statutory period inasmuch as at the applicable time, there was no provision in the no-fault regulations for such verification (A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; see also A.B. Med. Servs.
PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]).

In view of the foregoing, plaintiff’s cross motion for summary judgment should have been denied. Moreover, defendant’s motion for summary judgment dismissing the complaint was properly denied as its remaining contentions lack merit (see Damadian MRI in Garden City, P.C. v Windsor Group Ins., No. 2003-717 Q C, decided herewith).
Decision Date: April 09, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County

(L. Baily-Schiffman, J.), entered January 31, 2003, which granted defendant’s
motion to vacate the default judgment.

Order unanimously reversed without costs and defendant’s motion to vacate the default judgment denied.

In order to vacate a default judgment, the movant must establish
both a reasonable excuse for defaulting as well as a meritorious defense to the
action (see Titan Realty Corp. v Schlem, 283 AD2d 568 [2001]; Matter of
Gambardella v Ortov Light., 278 AD2d 494 [2000]). While the determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court
(Matter of Gambardella v Ortov Light., 278 AD2d 494, supra), the movant must
submit supporting facts in evidentiary form sufficient to excuse the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553 [2001]; Bravo v New
York City Hous. Auth., 253 AD2d 510 [1998]). In the case at bar, the affidavit [*2]
submitted in support of defendant’s motion was from one of its employees allegedly having personal knowledge of the claim. However, said employee failed to set forth supporting facts in evidentiary form indicating who made the purported inquiry about
an extension of time to answer, whether the inquiry was oral, written or made in
person, and on what date the purported inquiry was made. Accordingly, the
employee’s affidavit was insufficient to establish a reasonable excuse.

Furthermore, while defendant argues that it has a meritorious defense to the action, to wit, the no-fault claim was timely denied based on a peer review, it appears that such review was conclusory in nature and lacked a medical rationale for the claim’s rejection (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ,
Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Therefore, we are of the opinion
that defendant likewise failed to establish a meritorious defense to the action.

Decision Date: April 09, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered February 26, 2003, denying its motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, deemed an appeal from the judgment, entered pursuant to said order, on April 8, 2003, awarding plaintiff the sum of $1,469.84 (see CPLR 5501 [c]).

Judgment unanimously reversed without costs, so much of the order, entered February 26, 2003, as granted plaintiff’s cross motion for summary judgment vacated, plaintiff’s cross motion denied and matter remanded to the court below for all further proceedings.

Plaintiff commenced this action to recover $878.67, in first-party no-fault benefits for medical services it rendered to its assignor, as well as statutory interest and attorney’s fees, pursuant to Insurance Law § 5101 et seq. Thereafter, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered February 26, 2003, the court below denied the motion and granted the cross motion. A judgment was subsequently entered pursuant to said order on April 8, 2003 awarding plaintiff the sum of $1,469.84.

Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment inasmuch as it did not show that the assignor made an assignment to plaintiff Damadian MRI in Garden City, P.C. The assignment form herein names [*2]the assignee merely as “Damadian MRI.” Although the assignment demonstrates plaintiff’s standing to sue sufficient to withstand a motion to dismiss (see e.g. Neuro Care Assoc. v State Farm Ins. Co., NYLJ, June 25, 1998 [App Term, 2d & 11th Jud Dists]), it raises a question of fact as to whether plaintiff is the same entity as the one named in the assignment.

We note that defendant’s notices for examinations under oath did not toll the statutory period inasmuch as at the applicable time, there was no provision in the no-fault regulations for such verification (A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29,
2003 [App Term, 9th & 10th Jud Dists]; see also A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]). In view of the foregoing, plaintiff’s cross motion for summary judgment should have been denied. Moreover, defendant’s motion for summary judgment dismissing the complaint was properly denied as its remaining contentions lack merit (see Damadian MRI in Garden City, P.C. v Windsor Group Ins., No. 2003-862 Q C, decided herewith).
Decision Date: April 09, 2004

[*1]

Supreme Court, Appellate Term, Second Department, April 9, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Shapiro Beilly Rosenberg Aronowitz Levy & Fox, LLP, New York City (Roy J. Karlin of counsel), for respondent.

{**3 Misc 3d at 44} OPINION OF THE COURT

Memorandum.

Order unanimously modified by providing that plaintiff’s motion is granted to the extent of awarding plaintiff partial summary judgment in the sum of $2,598.04, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees, and for all further proceedings on the remaining portion of the claim in accordance with the decision herein; as so modified, affirmed without costs.

In this action to recover $2,998.04 in assigned first-party no-fault insurance benefits, defendant insurer denied all but $780.96 of plaintiff’s $3,779 claim for medical equipment on the ground that the supplier’s prices exceeded the prevailing rates for such equipment in plaintiff’s “geographic location” (cf. 11 NYCRR 68.5 [b]) and because certain of the items claimed, two “TENS Belts” ($78) and two “TENS Accessory Kits” ($122), were duplicative of other items for which benefits were paid. In Kings Med. Supply v Allstate Ins. Co. (2003 NY Slip Op 1681[U] [App Term, 9th & 10th Jud Dists]), the court concluded that because the Insurance Department regulation permitting reference to “the prevailing fee in the geographic location of the provider” pertains only where “the superintendent has not adopted or established a fee schedule applicable to the provider” (11 NYCRR 68.5 [b]), and that the [*2]regulatory limitation on a provider’s medical equipment to 150% of cost (11 NYCRR Appendix 17-C, part E [b] [1]) is an applicable fee schedule within the contemplation of 11 NYCRR 68.5 (b), an insurer may not deny a claim on the ground that the fees alleged exceeded the prevailing rates in the provider’s geographical location. If, as defendant urges, the premises underlying the determination that such a rule “help[s] contain the no-fault premium” (Goldberg v Corcoran, 153 AD2d 113, 118 [1989] [internal quotation marks omitted]) are unsound, the solution is remedial action by the appropriate regulatory authority. Defendants claim denial, although timely, was factually insufficient in that it failed to provide any specifics with regard to its conclusory defense that certain of the prescribed medical equipment was duplicative. Under the circumstances, the defenses proffered in the denial forms were ineffective to avoid preclusion. A timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law (Insurance Law § 5106 [a]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d {**3 Misc 3d at 45}11 [1999]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 140[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

However, plaintiff’s proof in support of the summary judgment motion included previously unproduced documents revealing that the equipment prescribed each assignor did not include the aforementioned “TENS accessory kit” ($122) and “TENS belt with straps” ($78), listed in the equipment provided each assignor and for which plaintiff sought $400 in no-fault health benefits. As we noted in Amaze Med. Supply v Eagle Ins. Co. (supra), where a plaintiff interjects an issue of fact in support of its motion for summary judgment which, if true, negates its prima facie case, if not amounting to a complete defense to a portion of the claim, namely, that the cost of unprescribed medical equipment is not a recoverable no-fault benefit, plaintiff should be estopped from invoking the waiver and preclusion rules which would otherwise apply in a no-fault benefits action (see 11 NYCRR 65.15 [d] [1], [2]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]). The defect was not apparent on the face of an otherwise sufficient claim, and insurers should not be required to demand such verification in every case to preserve the defense where no basis therefor is discerned, to the detriment of the purposes of the no-fault legislation, in essence, “to encourage prompt payment of claims, to discourage investigation by insurers and to penalize delays” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]).

Thus, partial summary judgment should have been granted in the amount of $2,598.04. The matter is remanded to the court below for a calculation of the statutory interest and attorney’s fees due on said amount (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.

Pesce, P.J., Patterson and Golia, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

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

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Queens County (P. Kelly, J.), entered October 23, 2002, denying its motion for partial summary judgment in the sum of $6,418.48.

Order unanimously affirmed without costs.

In this action to recover $11,251.62 in assigned first-party no-fault benefits, the court below denied plaintiff’s motion for partial summary judgment on $6,418.48 of its
claims. Plaintiff appeals that order to the extent that it denied $3,897.20 in benefits for
treatment rendered prior to December 28, 2001, conceding, in its brief, that a file-based
peer review and the results of an independent medical examination, conducted December 27, 2001 and December 28, 2001 respectively, created triable issues of fact whether prior diagnostic tests and all subsequent tests and treatments were medically necessary (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). In our view, the court properly denied summary judgment.

A no-fault benefits claimant establishes its prima facie case for summary judgment by “proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]), via the statutory [*2]claim forms (11 NYCRR 65.15 [b] [4]) or their functional equivalent (11 NYCRR 65.15 [d] [5); Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Defendant timely denied the claim (11 NYCRR 65.15 [g] [3]) on the ground that certain of plaintiff’s treatments were medically unnecessary (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 202 [1997]; Bonetti v Integon Natl. Ins. Co., 269 AD2d 413, 414 [2000]) based on peer reviews which, in our view, set forth a sufficient factual foundation and medical rationale for the claims’ rejection (Amaze Med.
Supply Inc. v Eagle Ins. Co., supra). With respect to the acupuncture claims, assignor’s
apparent denial that he received such treatment, as recorded in the medical examination report, created a triable issue whether the claim based thereon was appropriate.
Accordingly, the matter is remanded to the court below for all further proceedings on the claims.