A.B. Med. Servs. PLLC v Allstate Ins. Co.

[*1] A.B. Med. Servs. PLLC v Allstate Ins. Co. 2005 NYSlipOp 51270(U) Decided on July 28, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 28, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and BELEN, JJ.
2004-950 K C

A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., LVOV Acupuncture P.C., a/a/o Nicholas Filippakis, Appellants,

against

Allstate Insurance Company, Respondent.

Appeal by plaintiffs from an order of the Civil Court, Kings County (E. Spodek, J.), entered June 10, 2004, which denied their motion for partial summary judgment.

Order unanimously reversed without costs, plaintiffs' motion for partial summary judgment granted awarding plaintiff A.B. Medical Services PLLC the sum of $5,405.98, plaintiff D.A.V. Chiropractic P.C. the sum of $88.44, and plaintiff Lvov Acupuncture P.C. the sum of $840.56, 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.

Plaintiff health care providers commenced this action to recover the sum of $6,523.32 in first-party no-fault benefits for medical services rendered to their assignor, and thereafter moved for partial summary judgment in the sum of $6,326.52, which was comprised of $5,397.52 in claims for A.B. Medical Services PLLC, $88.44 in claims for D.A.V. Chiropractic P.C., and $840.56 in claims for Lvov Acupuncture P.C. (We note, incidentally, that included in the amount sought in the instant motion by plaintiff A.B. Medical Services PLLC is a claim for $523.94 which, as conceded by defendant, should have been in the amount of $532.40, and we therefore modify the amount sought for this claim.) Upon a review of the record, we find that plaintiffs established a prima facie entitlement to partial summary judgment in the aggregate amount of $6,334.98, by showing that they submitted claims 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]; [*2]Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant, however, did not meet its burden, since it failed to establish by competent evidence that its denial of claim forms were timely mailed within the requisite 30-day period to pay or deny the claims (11 NYCRR 65-3.8 [a] [1]). Although defendant in its opposition papers submitted an affidavit of its no-fault field adjuster who was familiar with the file, the affidavit did not allege that the denial of claim forms were actually mailed, nor did it describe the standard office practice or procedures used by defendant to ensure that such denials were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees due on the aggregate sum of $6,334.98, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder. We note that plaintiffs did not seek summary judgment for the balance due on the $71.06 claim for A.B. Medical Services PLLC and the balance due on the $425 claim for Lvov Acupuncture P.C., and the matter is therefore remanded for all further proceedings on those remaining claims.
Decision Date: July 28, 2005