A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp.

[*1] A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp. 2005 NY Slip Op 50088(U) Decided on February 1, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: February 1, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-338 K C

A.B. Medical Services PLLC, DANIEL KIM'S ACUPUNCTURE P.C. a/a/o Lorraine Felix Scott, Appellants,

against

Motor Vehicle Accident Indemnification Corp., Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (S. Krauss, J.), entered on December 30, 2003, which denied their motion for summary judgment.

Order unanimously reversed without costs, motion for summary judgment granted to plaintiff A.B. Medical Services PLLC in the sum of $ 4,113.32, and to plaintiff Daniel Kim's Acupuncture P.C. in the sum of $1,241.94, and matter 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 services rendered to their assignor, plaintiffs established a prima facie entitlement to summary judgment by proof that they submitted 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]).

The defendant's denial of receipt of the claims submitted by plaintiff A.B. Medical Services PLLC, as contained in the affidavit of defendant's no-fault examiner, was insufficient to rebut the presumption of receipt upon said plaintiff's proof of proper mailing, and fails to raise an [*2]issue of fact as to these claims (cf. Kihl v Pfeffer, 94 NY2d 118 [1999]; King's Med. Supply v Progressive Ins., 3 Misc 3d 126[A], 2004 NY Slip Op 50311[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claims within the 30-day prescribed period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defense that A.B. Medical Services PLLC failed to submit its claims within the prescribed period (see 11 NYCRR
65.15 [b] [4]; New York & Presbyt. Hosp. v Empire Ins. Co., 286 AD2d 322 [2001]), and the defense of lack of medical necessity asserted against plaintiff Daniel Kim's Acupuncture P.C. In any event, defendant submitted an unsworn peer review report in opposition to the motion for summary judgment by plaintiff Daniel Kim's Acupuncture, P.C. Since the report was not in admissible form, it was insufficient to warrant denial of said 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. PLLC v N.Y. Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). We note that the 30-day time requirement, which applies to defendant Motor Vehicle Accident Indemnification Corp. (see 11 NYCRR 65.15; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]) begins to run "after proof of claim is received" (11 NYCRR 65.15 [g] [3]) and not after defendant has "qualified" an eligible insured (see New York Hosp. Med. Ctr. of Queens, 12 AD3d 429, supra).

Accordingly, summary judgment is granted in favor of plaintiff A.B. Medical Services PLLC in the sum of $4,113.32, and to plaintiff Daniel Kim's Acupuncture P.C.
in the sum of $1,241.94, which said plaintiff effectively concedes is the unpaid amount of the claims. 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: February 01, 2005