Millennium Med. Instruments Inc. v NYC Tr. Auth.

[*1] Millennium Med. Instruments Inc. v NYC Tr. Auth. 2005 NY Slip Op 52205(U) [10 Misc 3d 139(A)] Decided on December 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2005-287 K C. NO. 2005-287 K C

MILLENNIUM MEDICAL INSTRUMENTS INC. a/a/o GOSEPH RANGE, Respondent,

against

NYC TRANSIT AUTHORITY, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered on December 14, 2004. The order, insofar as appealed from, denied defendant's cross motion for summary judgment.

Order, insofar as appealed from, reversed without costs and defendant's cross motion for summary judgment dismissing the complaint granted.

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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 (g) (3), now 11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 [*2]NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]) and defendant cross-moved for summary judgment to dismiss the complaint on said ground. The bus driver's affidavit, which was not rebutted by plaintiff's assignor, constituted admissible evidence in support of defendant's defense of a lack of causal nexus between the accident and the injuries for which the medical supplies were furnished to plaintiff's assignor, and was sufficient to establish, prima facie, the defense that the injuries did not arise out of an insured incident (see Central [*3]
Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199, supra). Since defendant's proof was unrebutted, the court should have granted its cross motion for summary judgment dismissing the complaint.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: December 30, 2005