A.B. Med. Servs. PLLC v American Tr. Ins. Co.

[*1] A.B. Med. Servs. PLLC v American Tr. Ins. Co. 2005 NY Slip Op 51893(U) [10 Misc 3d 127(A)] Decided on November 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
2004-1542 K C

A.B. Medical Services PLLC, D.A.V. CHIROPRACTIC P.C., LVOV ACUPUNCTURE P.C., a/a/o JOSUE JEAN-GILLES, Appellants,

against

American Transit Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen Gesmer, J.), entered September 27, 2004. The order, insofar as appealed from as limited by plaintiffs' brief, denied so much of a motion as sought partial summary judgment on behalf of plaintiff A.B. Medical Services PLLC.

Order, insofar as appealed from, unanimously reversed without costs, plaintiffs' motion granted to the extent of awarding plaintiff A.B. Medical Services PLLC partial summary judgment in the principal sum of $4,575.44, and matter remanded to the court
below for the calculation of statutory interest and attorney's fees thereon, and for all further proceedings on the remaining claims.

Appeal as taken by plaintiffs D.A.V. Chiropractor P.C. and Acupuncture P.C. unanimously dismissed.

Plaintiffs commenced this action to recover $6,080.18 in first-party no-fault benefits for medical services rendered to the assignor. Thereafter, a motion was brought seeking partial summary judgment in the principal sum of $4,575.44 based on some claims made by plaintiff health care provider A.B. Medical Services PLLC. Said plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims setting forth the fact and the amounts of the losses it sustained, and that payment of no-fault benefits was overdue (see [*2]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 the case at bar, the defendant's failure to object to the completeness of the assignments within 10 days of receipt constituted a waiver of any defenses based thereon (New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]).

The appeal as taken by the other plaintiffs is dismissed since they lack an interest in the specific sums in controversy upon the appeal (see CPLR 5511).

Accordingly, plaintiff A.B. Medical Services PLLC is awarded partial summary judgment in the principal amount of $4,575.44 and the case is remanded for the calculation of statutory interest and attorney's fees thereon, as well as for all further proceedings on the remaining claims.
Decision Date: November 04, 2005