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 (A. Agate, J.), entered August 23, 2002, denying its motion for summary judgment.

Order unanimously modified by granting partial summary judgment to plaintiff in the sum of $7,643.18, and matter remanded to the court below for the calculation of statutory interest, an assessment of attorney’s fees and for all further proceedings on the remainder of the claims; as so modified, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits, plus statutory interest and attorney’s fees, for medical services rendered to its assignor,
pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiff moved for summary
judgment, which motion was denied by order of the court below entered August 23, 2002.

A review of the record indicates that plaintiff established its prima facie entitlement to partial summary judgment in the amount of $7,643.18 by showing that it submitted complete proofs of claims to defendant in 2001, which were not timely paid or denied (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant contends that said claims were timely denied inasmuch as the statutory period was tolled since it requested verification in the form of an examination under oath of the assignor. However, the letters attached to defendant’s opposition papers do not toll the statutory period since they do not request verification; rather they inform plaintiff that its bills were being delayed because it was requesting examinations of several parties involved in the loss (see e.g. Sehgal v Royal Ins. Co. of Amer., NYLJ, Apr. 15, 1999 [App Term, 9th & 10th Jud Dists] [a letter stating that a peer review was to be conducted did not amount to a request for verification]). Moreover, it is noted that a request for such an examination would not toll the statutory period inasmuch as there was no provision in the no-fault regulations for same prior to April 5, 2002 (see
A.B. Med. Serv. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded as to said claims (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists], supra) and has not shown a triable issue of fact (see Alvarez, 68 NY2d at 324).

Plaintiff concedes that defendant timely denied its $820 acupuncture claim, $1,010.74 of its $1,212.16 physical therapy claim, and its $438.10 chiropractor claim, and argues that defendant improperly denied said claims on the ground of concurrent treatment. A review of the record, however, indicates that plaintiff failed to establish its prima facie entitlement to summary judgment for its $438.10 claim since it did not provide a proof of claim therefor (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists], supra), and we find that defendant validly denied the $820 and $1,010.74 claims on the grounds of “overlapping/excessive and/or concurrent care” and/or “services rendered by more than one physician.”

Accordingly, plaintiff is granted partial summary judgment in the principal sum of $7,643.18, and the matter is remanded to the court below for the calculation of statutory
interest and an assessment of attorney’s fees as to the claims on which defendant is
precluded, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: March 04, 2004

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.), dated November 27, 2002, as denied its motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $795 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff sued to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. In our opinion, plaintiff’s motion for summary judgment should have been granted.
The Insurance Regulation in effect in 2001, when the medical supplies were provided, was section 65.15 (d) (3) which stated that the eligible injured person shall submit to medical examinations when, and as often as, the company may reasonably require. There was no provision requiring the eligible person to appear for an examination under oath (EUO) until the following year, when the new regulation became effective on April 5, 2002 (11 NYCRR 65-3.5 [e]; A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]), and, thus, defendant’s EUO demands did not toll the 30-day period in which an insurer must act upon a claim or be precluded from most defenses (Insurance Law § 5106 [a]; Central Gen Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; A.B. Med. Serv. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Since there was no requirement that plaintiff’s assignor appear for an examination under oath as requested by defendant, plaintiff is entitled to summary judgment.

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 65.17 [b] [6]; 65.15 [*2][h] [1]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: March 04, 2004

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 (B. Bayne, J.), entered February 27, 2003, as denied its cross motion for summary judgment.

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

In this action to recover first-party no-fault benefits for medical equipment provided to plaintiff’s assignors, defendant moved for summary judgment and plaintiff cross-moved for summary judgment. The court denied both motions, holding, inter alia, that the supporting affidavit submitted in support of plaintiff’s cross motion was defective because it contained legal arguments notwithstanding that the affiant was not an attorney. This appeal by plaintiff ensued.

Although it is well settled that “[a]ffidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law” (Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [1]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 75, CPLR C2214:21), the mere inclusion of two case citations within a footnote did not render the entire affidavit defective. Rather, inasmuch as the affidavit contained facts of which the affiant had personal knowledge, it was necessary to assess the merits of plaintiff’s cross motion.

Plaintiff’s cross motion sufficed to establish a prima facie cause of action (see Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), and shifted to defendant the burden to demonstrate the existence of a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The affirmation by defendant’s counsel failed to allege that she had personal knowledge either that defendant timely mailed its requests for independent medical examinations to plaintiffs assignors or of facts sufficient to establish the [*2]presumption of mailing, i.e., an account of defendant’ s standard office procedures to ensure that requests for independent medical examinations are mailed (cf. S & M Supply, Inc. v Geico Ins. Co., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]). In the absence of a sufficient showing that the 30-day statutory period had been tolled, under the circumstances presented, the defendant is precluded from interposing its defenses (Insurance Law § 5106 [a]; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195, 199 [1997]; Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Thus, plaintiffs cross motion for summary judgment in the principal sum of $2,425 should have been granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.
Decision Date: March 03, 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 (K. Rothenberg, J.), entered November 4, 2002, denying its motion for summary judgment.

Order unanimously reversed without costs, plaintiffs motion for summary judgment granted in the principal sum of $517 and matter remanded to the court below for calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff commenced this action to recover $517 in first-party no-fault benefits for health services it provided to its assignor. Thereafter, it moved for summary judgment on the ground that defendant did not pay or deny its claim within 30 days as required by Insurance Law § 5106 (a). Upon a review of the record, we find that plaintiff established its prima facie entitlement to summary judgment, by showing that it submitted a completed claim to defendant (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]), which defendant acknowledged receiving on February 2, 2001 and denied by letter of March 21, 2001.

The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant, however, did not meet this burden since it failed to establish by competent evidence that it timely sent a verification request thereby tolling the commencement of the 30-day period in which to deny or pay the claim (see e.g. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]). Plaintiff did not admit to receiving said requests. Contrary to the determination of the court below, we find that the claim examiner’s affidavit raises no triable issue of fact as to whether a request was timely sent to plaintiff since she did not state that she had personal knowledge that a request was mailed to plaintiff (see Rue v Stokes, 191 AD2d 245 [1993]), and she did not create a presumption of [*2]mailing by describing the standard operating procedures defendant used to ensure that its requests are properly mailed (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Accordingly, plaintiffs motion for summary judgment is granted and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereto.
Decision Date: February 26, 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 (A. Schack, J.), entered October 7, 2002, denying its motion for summary judgment.

Order unanimously affirmed without costs.

Recovery of no-fault benefits requires a proper proof of claim, i.e. the completed statutory form (11 NYCRR 65-3.3 [d]) or its functional equivalent (11 NYCRR 65-3.5 [a], [f]; S & M Supply Inc. v Allstate Ins. Co., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]; cf. Interboro Gen. Hosp. v Allcity Ins. Co., 149 AD2d 569, 570 [1989]), and an insured’s proof of a properly submitted claim generally suffices to establish its prima facie case in summary judgment (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Here, however, plaintiffs inclusion of additional documents for the first time upon its motion for summary judgment, namely, a physician’s prescription for medical equipment, which did not match the equipment for which benefits were sought, and a receipt for medical equipment delivered to an insured other than its assignor, raised a triable factual issue, whether certain of the no-fault benefits sought were for equipment that was not part of the prescribed course of treatment or for equipment other than what the patient actually received (see Amaze Med. Supply Inc. v Eagle Ins. Co., supra).
Decision Date: February 26, 2004

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 insofar as appealed from unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for entry of judgment in the principal sum of $410, the calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff, a medical supply house, instituted this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, it moved for summary judgment on the ground that defendant failed to pay or deny the claim within 30 days of receipt of the proof of claim, in violation of Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]).

A review of the record indicates that plaintiff established its entitlement to summary judgment prima facie by the submission of the statutory forms setting forth “the fact and amount of loss sustained” (Insurance Law § 5106 [a]; see Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s sole ground both for its denial of plaintiff’s claim and opposing summary judgment was the assignor’s failure to appear for an examination under oath. However, the insurance regulations in effect when the claim was submitted, contained no provision requiring the injured person to submit to such an examination (see A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]; cf. 11 NYCRR 65-3.5 [*2][e], eff. April 5, 2002), an omission that cannot be remedied by reference to a policy provision requiring an insured’s “cooperation” with defendant’s investigation of a claim in the form of such an examination (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]). As defendant interposed no other proper defense to the claim, either pursuant to its claim denial or in opposition to the motion, summary judgment should have been granted.

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (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]).
Decision Date: February 18, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Queens County (A. Gazzara, J.), entered March 27, 2002, denying their motion for summary judgment.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $2,559.39, 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; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical treatment provided their assignor, plaintiffs moved for summary judgment. Defendant opposed and submitted nurses’ unsworn reviews of the files which concluded that the treatments were medically unnecessary. Defendant contends that said reviews sufficed to create a triable issue of medical necessity. Plaintiffs rejected the proof as inadequate. In our view, the medical reviews failed to create a triable issue of material fact as to the treatment’s medical necessity.

As a general rule, for purposes of medical diagnosis and treatment, a nurse is a mere lay informant (e.g. Dombrowski v Moore, 299 AD2d 949, 951 [2002]) whose medical opinions and conclusions drawn from the facts are incompetent and inadmissible (Nucci v Proper, 270 AD2d 816, 817 [2000], affd 95 NY2d 597 [2001]; People v Russell, 165 AD2d 327, 332 [1991]; see Prince, Richardson on Evidence § 7-101 [Farrell 11th ed]). Even were we to find that based on [*2]their “formal training or long observation and actual experience” the reviewers were qualified to state an expert opinion on the relevant issues (People v Monroe, 307 AD2d 588, 591 [2003]), the nurses’ affidavits failed to set forth an account of their training or observations and experience sufficient to establish the admissibility of the medical opinions set forth therein. In any event, none of the reviews were sworn, and for this reason also, they “did not constitute competent evidence sufficient to defeat [a motion for summary judgment]” (Bourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525, 526 [2002]).

As to defendant’s remaining defense, that the benefits sought exceeded those permitted by Workers’ Compensation schedules (Insurance Law § 5108 [a]), we have held that by virtue of a timely claims denial an insurer is entitled to interpose the defense in opposition to a claimant’s motion for summary judgment (Park Health Ctr. v Prudential Prop. & Cas. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d & 11th Jud Dists]; see Insurance Law § 5108 [c] [“(n)o provider of health services . . . may demand or request any payment in addition to the (authorized) charges”]; Goldberg v Corcoran, 153 AD2d 113, 119 [1989]; e.g. Murali v Upton, 175 Misc 2d 186, 187 [Civ Ct, NY County (1997)] [section 5108 (c) bars any no-fault claim exceeding “the legally permissible fee”]). Nevertheless, defendant failed to establish that any of the charges exceeded that permitted by law by evidentiary proof sufficient to create a triable issue of material fact.

Finally, summary judgment was properly denied as to the $54.74 claim. Plaintiffs did not allege the date defendant received the claim forms and failed to rebut defendant’s documentary proof that both its initial and follow-up verification requests, dated February 22, 2001 and March 24, 2001, were timely (11 NYCRR 65.15 [d] [1], [2]). Absent the requested verification, an insurer is under no obligation to act on a claim (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2001]), and without proof of their compliance with the verification requests, plaintiffs failed to prove prima facie a proper claim for no-fault benefits.

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 $2,559.39, the portion of the claim for which summary judgment is granted (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.
Decision Date: February 10, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (K. Yellen, J.), entered November 22, 2002, as denied their motion for summary judgment. Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $16,461.40 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.

In this action to recover $19,425.89 in first-party no-fault benefits for medical treatment provided their assignor, plaintiffs sustained their burden to prove entitlement to no-fault benefits prima facie by submitting proof of the completed statutory forms setting forth “the fact and amount of loss” (Insurance Law § 5105 [a]; e.g. S & M Supply Inc. v Allstate Ins. Co., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]), without the necessity of additional proof that the fact or extent of the treatments were medically necessary (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Defendant’s failure to timely deny the claims (11 NYCRR 65.15 [g] [3]) waived objections based on the facial sufficiency of the claim forms (New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]) and most defenses as to the propriety of the claim itself (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Defendant’s attempt to toll the commencement of the 30-day claim [*2]determination period by recourse to an examination of the assignor under oath failed because when plaintiffs filed their claims, there was no provision in the insurance regulations for such a procedure (see 11 NYCRR 65.15 [d] [3]; 65.2 [a]; 11 NYCRR 65-1.1 [d]; 65-3.5 [e], eff. April 5, 2002). Defendant cannot base the right to such an examination in 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]; e.g. Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]).

While objections based on allegedly fraudulent accident claims survive an insurer’s failure to timely deny such claims (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), in opposition to the summary judgment motion, defendant failed to allege facts, in admissible form and with the requisite particularity, to create triable issues of fraud (cf CPLR 3016 [b]); Small v Loriulard Tobacco Co., 94 NY2d 43, 57 [1999]; Matter of State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 490-491 [2003]); Bonetti v Integon Natl. Ins. Co., 269 AD2d 413, 414 [2000]). Insofar as defendant based its opposition to summary judgment on the claim that the extent of the treatment was medically unnecessary, as noted previously, defendant is precluded from interposing the defense (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; Amaze Med. Supply Inc. v Eagle Ins. Co., supra).

However, plaintiff A. B. Medical Services PLLC failed to prove submission of the completed statutory forms as to its physical therapy claim for $464.80. Absent either an allegation in plaintiffs’ affidavit as to whether the claim forms were mailed, or proof of when defendant received the claims via, e.g., defendant’s claim determination forms, the prima facie case also failed as to plaintiff Daniel Kim’s Acupuncture P.C.’s claim for $270.00; plaintiff A.B. Medical Services PLLC’s claims for $71.06 (October 25, 2000), $895.80, $532.42 (July 28, 2000), $249.96, and $76.06; and plaintiff D.A.V. Chiropractic P.C.’s claim for $404.40 (November 6, 2000).

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 $16,461.40, the portion of the claim for which summary judgment is granted (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 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 claims.
Decision Date: February 10, 2004

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In an action to recover no-fault medical payments under an insurance contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Burke, J.), dated January 3, 2003, as granted the defendant’s cross motion to vacate (1) an order of the same court dated May 14, 2002, granting the plaintiff’s motion for summary judgment upon the defendant’s failure to oppose the motion, and (2) a judgment of the same court entered June 21, 2002, upon the order.

Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, the cross motion is denied, and the order dated May 14, 2002, and the judgment entered June 21, 2002, are reinstated.

A party seeking to be relieved of its default must establish both a reasonable excuse and a meritorious defense (see CPLR 5015; Eretz Funding v Shalosh Assoc., 266 AD2d 184, 185 [1999]). In this case, the defendant was aware that the plaintiff obtained a default judgment against it and took no steps to vacate the default until the plaintiff moved to hold the defendant in contempt of court for failing to comply with an information subpoena designed to enforce the judgment. Such conduct constituted an intentional default, which was not excusable (see Eretz Funding v Shalosh Assoc., supra; Roussodimou v Zafiriadis, 238 AD2d 568, 568-569 [1997]). Therefore, the defendant’s motion to vacate its default should have been denied. Florio, J.P., Krausman, Luciano, Townes and Rivera, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Suffolk County (P. Barton, J.), entered March 22, 2002, denying its motion to compel responses to its discovery demands and granting plaintiffs cross motion for summary judgment in the principal sum of $1,571.80.

Order unanimously affirmed without costs 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 first-party no-fault medical benefits for treatment rendered to its assignor, plaintiff cross-moved for summary judgment. For the reasons set forth in Damadian MRI in Elmhurst. P.C. v Liberty Mut. Ins. Co. (No. 2002-999 S C, [decided herewith]), plaintiffs proof of its claim as submitted to defendant sufficed to establish its prima facie case in summary judgment. Inasmuch as defendant, failed to timely deny plaintiffs no-fault claim within 30 days of receipt (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8[c]), it is precluded from raising the defense of lack of medical necessity (see Central Gen. Hosp. v Chubb Group of Ins. Cos. as., 90 NY2d 195, 199 [1997]).

Accordingly, plaintiffs cross motion was properly granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $1,571.80 (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995].
Decision Date: December 24, 2003