Fair Price Med. Supply Corp. v General Assur. Co.

[*1] Fair Price Med. Supply Corp. v General Assur. Co. 2005 NY Slip Op 50256(U) Decided on March 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-602 K C

Fair Price Medical Supply Corp., a/a/o Jean Baptiste, Appellant,

against

General Assurance Company, Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered March 9, 2004, as denied its motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff's motion for summary judgment granted 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 supplies provided to its assignor, plaintiff provider established a prima facie entitlement to summary judgment 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]).

In opposition to plaintiff's motion for summary judgment, defendant made the conclusory allegation, by one without personal knowledge of the facts, that it had sent several requests for independent medical examinations and that plaintiff's assignor failed to appear. Since defendant likewise failed to describe the standard office practice or procedures it used to ensure that such requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to create a triable issue of fact (see Nika Med. Supply v Nationwide Mutual Ins. Co., 2003 NY Slip Op 50858[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff's motion for summary judgment is granted and the matter is remanded for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.
Decision Date: March 02, 2005