Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co.

[*1] Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co. 2005 NYSlipOp 50856(U) Decided on June 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: June 1, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and BELEN, JJ.
2004-1009 Q C

Triboro Chiropractic and Acupuncture P.L.L.C. a/a/o Andre Vincent, Appellant,

against

New York Central Mutual Fire Insurance Company, Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Queens County (J. Golia, J.), entered January 12, 2004, as denied its motion for summary judgment. Order unanimously modified by providing that plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $4,117.18 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the facts and the amount of the losses 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]). Inasmuch as defendant failed to pay or deny claims in the sums of $1,800, $1,588.44 and $728.74 within the 30-day statutory period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses with respect thereto (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 [*2]NY2d 274, 282 [1997]).
The remaining claims were timely denied on the ground that the bills submitted were "not properly no-fault rated" and that the fees charged were in excess of the Workers' Compensation fee schedule. Such defenses raise triable issues of fact warranting the denial of plaintiff's motion for summary judgment as to said claims.

Accordingly, partial summary is granted plaintiff in the sum of $4,117.18 and the matter is remanded to the court below for a calculation of the statutory interest and an
assessment of attorney's fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: June 01, 2005