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Air Plus Surgical Supply v. Progressive Ins.

Appellate Term of the Supreme Court of New York, Second Department
Dec 12, 2005
2005 N.Y. Slip Op. 52088 (N.Y. App. Term 2005)

Opinion

2005-178 N C.

Decided December 12, 2005.

Appeal and cross appeal from an order of the District Court of Nassau County, First District (Norman Janowitz, J.), entered December 23, 2004. The order denied plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment.

Order insofar as appealed from by plaintiff unanimously reversed without costs, plaintiff's motion for summary judgment granted in the principal sum of $2,983 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

Cross appeal by defendant unanimously dismissed.

PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.


In this action to recover first-party no-fault benefits for medical supplies provided to its assignor, plaintiff established its prima facie entitlement to summary judgment by showing that it submitted completed proofs of claims, setting forth the fact and the amount of the loss sustained, and that payments of no-fault benefits were overdue ( see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742; Damadian MRI In Elmhurst v. Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th 10th Jud Dists]). The burden then shifted to defendant to demonstrate a triable issue of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320, 324).

The timely denials containing the unaffirmed but factually specific peer review report constituted a sufficient assertion of a defense of lack of medical necessity. However, in opposition to a motion for summary judgment defendant was required to submit proof in admissible form to rebut plaintiff's prima facie showing. Since the report was not in admissible form, plaintiff's motion should have been granted ( A.B. Med. Servs. v. New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d 11th Jud Dists]).

We note that, in accordance with the brief submitted by defendant, its cross appeal is dismissed.


Summaries of

Air Plus Surgical Supply v. Progressive Ins.

Appellate Term of the Supreme Court of New York, Second Department
Dec 12, 2005
2005 N.Y. Slip Op. 52088 (N.Y. App. Term 2005)
Case details for

Air Plus Surgical Supply v. Progressive Ins.

Case Details

Full title:AIR PLUS SURGICAL SUPPLY, INC. As Assignee of SAMPSON ODURO…

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Dec 12, 2005

Citations

2005 N.Y. Slip Op. 52088 (N.Y. App. Term 2005)
814 N.Y.S.2d 559