Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co.

[*1] Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. 2006 NY Slip Op 51051(U) [12 Misc 3d 131(A)] Decided on June 5, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-1132 K C. NO. 2005-1132 K C

Amaze Medical Supply Inc., a/a/o Miguel Gonzalez, Appellant,

against

New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered August 4, 2005. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion to compel depositions to the extent of directing plaintiff to produce an individual with personal knowledge of its billing and distribution procedures.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff provider established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts 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]; 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 raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

All the claims were denied based on excessive billing as well as the results of an investigation which had revealed that the injuries alleged were not related to the motor vehicle accident. In opposition to plaintiff's motion, defendant submitted, inter alia, an accident analysis report (referred to as a "low impact study") accompanied by an affidavit of the technical consultant/accident reconstructionist who prepared the report, which may constitute a proper basis for a denial (see Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50958[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op [*2]50607[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists]). These submissions were sufficient to demonstrate that its defense of lack of a nexus between the accident and the injuries claimed was based upon a "founded belief that the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff's motion for summary judgment was properly denied. In addition, defendant raised a triable issue of fact as to excessive billing. As a result, the court below properly directed plaintiff to produce for deposition an individual with personal knowledge of its billing and distribution procedures.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum.

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

I agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree 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: June 5, 2006