Amaze Medical Supply Inc. v Allstate Ins. Co.

[*1] Amaze Medical Supply Inc. v Allstate Ins. Co. 2004 NY Slip Op 51636(U) Decided on December 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-357 K C -against-

AMAZE MEDICAL SUPPLY INC. a/a/o MANUEL R. ARIZAGA, Appellant,

against

ALLSTATE INSURANCE CO., Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 13, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff's motion for summary judgment granted in the principal sum of $1,737 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

Plaintiff established a prima facie case of entitlement to summary judgment by the submission of complete proofs of claims setting forth the fact and the amount of the loss sustained, and that payment was overdue (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).
Plaintiff's claims in the amount of $1,737 were not denied until more than 30 days after they were submitted (11 NYCRR 65-3.8 [a], [c]). Thus, pursuant to Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997]), the insurer was precluded from raising most defenses including lack of medical necessity. Accordingly, plaintiff's motion for summary judgment should have been granted.

We find respondent's contention concerning the timeliness of the appeal to be without merit.
Decision Date: December 15, 2004