Opinion
571135/02.
Decided February 11, 2004.
Plaintiff appeals from an order of the Civil Court, New York County, entered January 25, 2002 (Debra A. James, J.) which denied its motion for summary judgment.
Order entered January 25, 2002 (Debra A. James, J.) modified to grant plaintiff's motion for summary judgment on its no-fault insurance claim relating to the April 24, 2000 medical services rendered to its assignor, Smolyanskiy, and to remit the matter to Civil Court for the assessment of appropriate attorney's fees and interest with respect thereto; as modified, order affirmed, without costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
The action seeks recovery of motor vehicle no-fault benefits in the form of medical expenses allegedly incurred by plaintiff's assignors. Plaintiff demonstrated entitlement to summary judgment on its claim for neurological testing administered to its assignor, Smolyanskiy, on April 24, 2000, since the record shows that defendant received plaintiff's no-fault claim relating to those services no later than June 23, 2000, and did not deny the claim until July 31, 2000. Having failed to "pay or deny the claim in whole or in part" ( 11 NYCRR 65-3.8[c]) within 30 days of receipt, defendant waived any defenses relating to the adequacy of plaintiff's claim forms, including the alleged absence of necessary signatures ( see, Mount Sinai Hosp. v. Figuerdov, 263 AD2d 11, 17) or the medical necessity of the services rendered ( see, Central Gen. Hosp. v. Chubb Group, 90 NY2d 195; Country-Wide Ins. Co. v. Zabloski, 257 AD2d 306, lv denied 93 NY2d 809).
Summary judgment is unwarranted, however, on the remaining no-fault claims alleged in the complaint. Contrary to plaintiff's contention, the peer review reports relied upon by defendant in timely denying the remaining claims were a proper vehicle to assert the defense of lack of medical necessity ( 11 NYCRR 65-3.8[b][4]) and set forth sufficient facts to raise a triable issue with respect to that defense ( see, S+M Supply, Inc. v. Allstate Ins. Co., 2003 WL 21960336, decided July 9, 2003 [App Term, 2nd Dept]).
This constitutes the decision and order of the court.