Amaze Med. Supply Inc. v Allstate Ins. Co.

[*1] Amaze Med. Supply Inc. v Allstate Ins. Co. 2006 NY Slip Op 50909(U) [12 Misc 3d 127(A)] Decided on May 17, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2005-698 K C. NO. 2005-698 K C

Amaze Medical Supply Inc., a/a/o Marta Yepes, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered March 18, 2005. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, 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]). The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to the motion, defendant provided evidence demonstrating the timely mailing of its denial of claim, based upon plaintiff's assignor's failure to appear for a pre-claim independent medical examination (IME) (see 11 NYCRR 65-3.8 [c]), as well as its letters to plaintiff's assignor requesting the IME. Moreover, the record establishes that plaintiff's assignor failed to appear for the scheduled IME. In view of the foregoing, in our opinion, plaintiff's motion for summary judgment was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2004]; see also D.A.V. Chiropractic P.C. v American Tr. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50609[U] [App [*2]Term, 2d & 11th Jud Dists]).

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
AMAZE MEDICAL SUPPLY INC.
a/a/o MARTA YEPES,
Appellant,

-against-

ALLSTATE INSURANCE COMPANY,
Respondent.

Golia, J.P., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 17, 2006