Amaze Med. Supply Inc. v Lumbermens Mut. Cas. Co.

[*1] Amaze Med. Supply Inc. v Lumbermens Mut. Cas. Co. 2005 NY Slip Op 50084(U) Decided on January 27, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-339 K C

AMAZE MEDICAL SUPPLY INC., a/a/o Leticia Jordan, Appellant,

against

LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Spodek, J.), entered on January 29, 2004, which denied its motion for summary judgment and conditionally granted defendant's cross motion to preclude.

Order unanimously reversed without costs, plaintiff's motion for summary judgment granted, defendant's cross motion to preclude denied and matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

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 the claims, 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, defendant submitted an unsworn peer review report. Inasmuch as said report was not in admissible form, it was insufficient to warrant denial of plaintiff's motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). [*2]

The court did not specify its reasons for denial of plaintiff's motion. To the extent that the court's decision may rest on the lack of authentication of the assignments, it is erroneous. The lack of authentication of the assignor's signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same (A.B. Med. Servs. v Nationwide Mut. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24506[U] [App Term, 2d & 11th Jud Dists]). Even assuming arguendo that a lack of authentication constituted a cognizable defect, defendant's failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim forms, constitutes a waiver thereof (see id; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, plaintiff's motion for summary judgment is granted and defendant's cross motion to preclude is denied. The matter is remanded for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: January 27, 2005