South Queens Imaging P.C. v Nationwide Mut. Ins. Co.

[*1] South Queens Imaging P.C. v Nationwide Mut. Ins. Co. 2005 NYSlipOp 50608(U) Decided on April 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 22, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2004-593 Q C

South Queens Imaging P.C. a/a/o Kadian Nicholson, Appellant,

against

Nationwide Mutual Insurance Company, Respondent.

Appeal by plaintiff from an order of the Civil Court, Queens County (D. Butler, J.), entered March 5, 2004, which denied its motion for summary judgment.

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

In this action to recover first-party no-fault benefits for medical services provided its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (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 the motion, defendant submitted the unsworn reports of an independent medical examination (IME) of assignor, conducted before plaintiff filed the first of its four claims upon which defendant explicitly relied in each of its subsequent timely claim denials, and an unsworn peer review report dated subsequent to its denial of one of the four claims. The unsworn IME and peer review reports did not constitute competent proof in admissible form and were insufficient to warrant denial of plaintiff's motion (e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, 87 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. [*2]Servs. v New York Central Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62 [2004] [App Term, 2d & 11th Jud Dists]). Defendant proffered no acceptable excuse for the failure to submit the reports in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]). [*3]

Accordingly, plaintiff is granted summary judgment and the matter is remanded to the court below for the calculation of statutory interest and attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Decision Date: April 22, 2005