Damadian MRI in Canarsie, P.C. v General Assur. Co.

[*1] Damadian MRI in Canarsie, P.C. v General Assur. Co. 2006 NY Slip Op 51048(U) [12 Misc 3d 130(A)] Decided on June 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2005-1385 S C.

Damadian MRI in Canarsie, P.C., a/a/o Tyrone Harley, Respondent,

against

General Assurance Company, Appellant.

Appeal from a judgment of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered April 15, 2005. The judgment, after a nonjury trial, awarded plaintiff the sum of $3,961.37.

Judgment affirmed without costs.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. After trial, the court found in favor of plaintiff and held that defendant failed to establish its defense that the services rendered were not medically necessary. On appeal, defendant argues that the assignment of benefits forms were improperly admitted into evidence and, as a result, the judgment should be reversed because without the assignment of benefits forms, plaintiff failed to make out a prima facie case.

It is well settled that a health care provider establishes its prima facie entitlement to judgment as a matter of law 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]). Since defendant failed to timely object to the completeness of the assignment of benefits forms or seek verification of same as required by 11 NYCRR 65-3.5, defendant waived any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]). Accordingly, the judgment is affirmed.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 2, 2006