Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp.
Annotate this CaseDecided on February 22, 2005
Civil Court, Kings County
Amaze Medical Supply Inc., a/a/o Victor Flores & Juan Santos, Plaintiff,
against
Travelers Property Casualty Corporation, Defendant.
59402/2002
Peter P. Sweeney, J.
In this action to recover assigned first-party no-fault benefits, defendant moves to dismiss plaintiff's complaint for its willful failure to comply with discovery demands. Plaintiff's cross-moves for summary judgment. Plaintiff's motion will be addressed first.
Plaintiff established prima facie entitlement to summary judgment by submitting admissible proof that it submitted the statutory claim forms setting forth the fact and the amount of the losses 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 [2d Dep't 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 (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]).
Defendant's defense of accord and satisfaction is without merit. Following receipt of the claims at issue, defendant issued several checks to the plaintiff in amounts that defendant unilaterally deemed to be reasonable compensation for the medical equipment plaintiff provided to its assignor. The mere fact that plaintiff cashed those checks did not establish an accord and satisfaction. The acceptance of a check will operate as an accord and satisfaction only when that [*2]party was clearly informed that acceptance of the check would settle the claim (Merrill Lynch Realty/Carll Burr, Inc. v. Skinner, 63 NY2d 590, 596 [1984] (citations omitted). Here, neither the checks nor the denials of claim that accompanied them "expressly stated that the check[s] [were] offered in settlement of any outstanding dispute" (Merrill Lynch Realty/Carll Burr, Inc. v. Skinner 63 NY2d at 596). Accordingly, the court concludes, as a matter of law, that plaintiff was not clearly informed that its acceptance of the checks at issue herein would settle or discharge plaintiff's claims (Sorrye v. Kennedy, 267 AD2d 587, 589-590 [3d Dep't 1999]; Merrill Lynch Realty/Carll Burr v. Skinner, supra, at 596).
Defendant's contention that the claim forms submitted by the plaintiff were deficient is also without merit. "[T]he defendant's failure to object to the adequacy of the plaintiff's claim form within 10 days of receipt constituted a waiver of any defenses based thereon (New York Hosp. Medical Center of Queens v. Motor Vehicle Acc. Indemnification Corp.,12 AD3d 429 [2d Dep't 2004], citing 11 NYCRR 65.15[d]; New York Hosp. Med. Ctr. of Queens v. AIU Ins. Co., 8 AD3d 456 [2d Dep't 2004]; New York & Presbyt. Hosp. v. American Tr. Ins. Co., 287 AD2d 699, 701[2d Dep't 2001]; Mount Sinai v. Triboro Coach, 263 AD2d 11, 17 701[2d Dep't 1999]).
Finally, although defendant correctly points out that the plaintiff did not submit any admissible proof authenticating the signature of its assignor on the assignment of benefits form, "the insurance regulations do not require that the signature of the assignor on the assignment of benefits form be authenticated" (A.B. Medical Services PLLC. V. USAA Cas. Ins. Co., 2004 WL 2978920, 2 [App Term, 2d & 11th Jud Dists]). The lower court cases relied upon by the defendant for the contrary proposition are no longer good law.
The court has considered the other arguments raised by defendant in opposition to the cross-motion and find them to be without merit. Defendant's motion addressed to discovery is denied as moot.
Accordingly, it is hereby
ORDERED that plaintiff's cross-motion for summary judgment is GRANTED and the Clerk is directed to enter judgment in favor of the plaintiff and against the defendant in the amount of $2,918.97 with interest and attorney's as provided for pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder as well as costs and disbursements; and it is further
ORDERED that defendant's motion is DENIED as moot.
Dated: February 22, 2005 _____________________________
PETER P. SWEENEY
Civil Court Judge
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