Global Med. Equip., Inc v Allstate Ins. Co.

[*1] Global Med. Equip., Inc v Allstate Ins. Co. 2007 NY Slip Op 50675(U) [15 Misc 3d 131(A)] Decided on March 28, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-477 K C.

Global Medical Equipment, Inc. a/a/o SASNETT TYREE, Respondent,

against

Allstate Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered December 22, 2005. The order granted plaintiff's motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff's motion on the ground that plaintiff did not make a prima facie showing because plaintiff failed to establish that defendant issued an untimely denial of plaintiff's claim. The court granted
plaintiff's motion for summary judgment and defendant raises the same argument on appeal.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, 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]). Contrary to defendant's contention, plaintiff was not required to demonstrate that defendant's denial was untimely as part of plaintiff's prima facie case. Since defendant failed to raise any substantive defense in admissible form, whether or not it is subject to preclusion, the timeliness of defendant's denial is rendered academic. Consequently, the order is affirmed.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007