King's Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co.

[*1] King's Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. 2004 NY Slip Op 51685(U) Decided on December 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
2003-1459 K C

KING'S MEDICAL SUPPLY INC., a/a/o SEERAM MOHANRAM, Appellant,

against

NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (M. Solomon, J.), entered on August 20, 2003, which denied 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 a calculation of statutory interest and an assessment of attorney's fees.

Plaintiff commenced the instant suit to recover no-fault benefits for medical supplies furnished to its assignor. Plaintiff established prima facie entitlement to summary judgment by proof that it submitted statutory claim forms setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was
overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff's motion, defendant failed to establish the existence of a triable issue of fact. Defendant denied plaintiff's claim for no-fault benefits on the ground that plaintiff's assignor failed to appear for independent medical examinations (IMEs) scheduled prior to defendant's receipt of plaintiff's claim. While defendant was entitled to request IMEs prior to its receipt of plaintiff's claim, failure to attend such IMEs is not subject to sanctions under the claim [*2]rules of the insurance regulations, and hence, such failure of plaintiff's assignor did not constitute a proper basis for denial of no-fault benefits (see Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op _______ [decided herewith]). There being no other defense asserted by defendant, plaintiff's motion for summary judgment is granted and [*3]
the matter is remanded for a calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: December 22, 2004