Opinion
12-06-2000
HOWARD M. ROMBOM, PH D, P. C., as Assignee of MICHAEL JONES, Respondent, v. INTERBORO MUTUAL INDEMNITY INSURANCE CO., Appellant.
Israel & Israel, L. L. P., Great Neck (Stacy Mandel Levine of counsel), for respondent.
Louis J. Papa, Garden City, for appellant. Israel & Israel, L. L. P., Great Neck (Stacy Mandel Levine of counsel), for respondent. DIPAOLA, P. J., PALELLA and DOYLE, JJ., concur.
OPINION OF THE COURT
MEMORANDUM. Order unanimously affirmed without costs and matter remanded to the court below for further proceedings in accordance with the decision herein. Defendant's failure to deny plaintiff's claim for no-fault benefits within 30 days of receipt of proof of claim and amount of loss sustained (see, Insurance Law § 5106; 11 NYCRR 65.15 [g] [3]) precludes defendant from asserting the affirmative defense of denial of benefits on the ground that the tests administered were "not medically reasonable and/or necessary" (see, Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274). Since plaintiff submitted proper proof of claim, summary judgment was properly granted in his favor. The matter is accordingly remanded to the court below for a calculation of the statutory interest on the claim and attorney's fees (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 67.17 [b] [6] [iii], [v]; see also, St. Clare's Hosp. v Allstate Ins. Co., 215 AD2d 641; Sehgal v Royal Ins. Co., NYLJ, Apr. 15, 1999, at 31, col 4 [App Term, 9th & 10th Jud Dists]).