Amaze Med. Supply Inc. v GEICO Ins.

[*1] Amaze Med. Supply Inc. v GEICO Ins. 2005 NYSlipOp 51053(U) Decided on February 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: February 17, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-460 N C

Amaze Medical Supply Inc., a/a/o Roderick Burnett, Appellant,

against

GEICO Insurance, Respondent.

Appeal by plaintiff from an order of the District Court, Nassau County (D. Gross, J), entered January 12, 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 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 furnished to its assignor, plaintiff 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). While defendant timely denied the claims, it must nevertheless submit proof in admissible form in opposition to plaintiff's motion to rebut plaintiff's prima facie showing (A.B. Med. Servs. PLLC, 4 Misc 3d at 87). Since defendant's submission, an unsworn peer review report, was not in admissible form, it was insufficient to warrant denial of plaintiff's motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; A.B. Med. Servs. PLLC, 4 Misc 3d at 87; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[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 (a) and the regulations promulgated thereunder.
Decision Date: February 17, 2005