A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co.

[*1] A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. 2005 NYSlipOp 50650(U) Decided on April 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
2004-914 K C

A.B. Medical Services PLLC SOMUN ACUPUNCTURE P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o MOTHELIEN BAPTISTE, Appellants,

against

GEICO Casualty Insurance Co., Respondent.

Appeal by plaintiffs, as limited by their brief, from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered on May 20, 2004, as denied the motion by plaintiff A.B. Medical Services PLLC for summary judgment.

Order insofar as appealed from unanimously reversed without costs, motion for summary judgment granted in favor of A.B. Medical Services PLLC in the principal sum of $3,971.20 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

Appeal as taken by plaintiffs Somun Acupuncture P.C., and Square Synagogue Transportation Inc. unanimously dismissed. [*2]

In this action to recover assigned first-party no-fault benefits, plaintiff A.B. Medical Services PLLC established a prima facie entitlement to summary judgment by proof that it submitted completed claim forms 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]). Defendant failed to provide proof in admissible form to raise a triable issue of fact as to its defense of lack of medical necessity of the services rendered (A.B. Med. Servs. PLLC v NewYork Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the motion by A.B. Medical Servs. PLLC should have been granted in the sum of $3,971.20 and [*3]
the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them is dismissed (Praeger v Praeger,162 AD2d 671 [1990]).

We reach no other issue.
Decision Date: April 29, 2005