Great Wall Acupuncture v Peerless Ins. Co.

[*1] Great Wall Acupuncture v Peerless Ins. Co. 2007 NY Slip Op 51606(U) [16 Misc 3d 135(A)] Decided on August 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-538 K C.

Great Wall Acupuncture a/a/o Barbara Frenquie, Appellant,

against

Peerless Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 7, 2005. The order, insofar as appealed from as limited by the brief, denied plaintiff's motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

In an action to recover assigned first-party no-fault benefits, 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 amount of the loss sustained, and that payment of no-fault benefits is 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 raised no issue in the court below or on appeal with respect to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

In opposition to plaintiff's motion for summary judgment, defendant asserted that the [*2]insured's vehicle was not involved in the accident. However, as plaintiff properly argued below, the facts offered in support of the defense were not submitted in admissible form, and even were we to conclude otherwise, they are insufficient to establish a triable issue of coverage (State Farm Mut. Auto. Ins. Co. v Langan, 18 AD3d 860, 862 [2005]; Rue v Stokes, 191 AD2d 245, 246-247 [1993]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th Jud Dists 2004]).

Accordingly, the order, insofar as appealed from, should be reversed, plaintiff's motion for summary judgment granted and the matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: August 16, 2007