Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co.

[*1] Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co. 2006 NY Slip Op 52598(U) [16 Misc 3d 1134(A)] Decided on January 5, 2006 Civil Court Of The City Of New York, Bronx County González, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 7, 2007; it will not be published in the printed Official Reports.

Decided on January 5, 2006
Civil Court of the City of New York, Bronx County

Fair Price Medical Supply, Inc., Assignee of Dorismond Frantz, Plaintiff,

against

St. Paul Travelers Insurance Company, Defendant.



74244/03

Lizbeth González, J.

The plaintiff is a medical provider who seeks payment for no-fault medical services rendered to the assignor. The claim was rejected by the defendant-insurer on the ground of lack of medical necessity. At trial, the plaintiff's bills were not accepted into evidence pursuant to CPLR 4539(b) because its computer copies, unlike the originals, were unsigned. The defendant's interrogatories, however, establish that the plaintiff's bills were received and that a deficiency in the amount of $1261.81 remains outstanding. The defendant, which produced no witnesses, argues that the claim should be denied because the plaintiff failed to introduce into evidence an assignment of benefits as part of its prima facie case. This Court is compelled to follow the authority of the Appellate Term, First Department, which recently held that an insurer's failure to object to the adequacy of a plaintiff's no-fault claim form within 10 days of receipt waives any defenses based thereon, including any deficiencies in the assignment of benefits. (Laufer v Lumberman's Mutual Casualty Co., NYLJ, Oct. 17, 2005, at 27, col. 1 .) The defendant, which failed to introduce its denial into evidence, concedes that no objection to the plaintiff's omission of its assignment was raised.

After careful consideration, this Court determines that the plaintiff met its prima facie burden by a preponderance of the credible evidence. The Clerk of the Court is directed to enter judgment for the plaintiff in the amount of $1261.81 together with statutory interest, attorney's fees and costs.

This constitutes the decision and judgment of the Court.

Dated:January 5, 2006

So ordered,

_________________________________

Hon. Lizbeth González