Opinion
2002-750 S C.
Decided December 24, 2003.
Appeal by defendant from an order of the District Court, Suffolk County (P. Barton, J.), entered March 22, 2002, denying its motion to compel responses to its discovery demands and granting plaintiffs cross motion for summary judgment in the principal sum of $1,571.80.
Order unanimously affirmed without costs and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees.
PRESENT: WINICK, J.P., LIFSON and SKELOS, JJ.
In this action to recover first-party no-fault medical benefits for treatment rendered to its assignor, plaintiff cross-moved for summary judgment. For the reasons set forth in Damadian MRI in Elmhurst. P.C. v. Liberty Mut. Ins. Co. (No. 2002-999 S C, [decided herewith]), plaintiffs proof of its claim as submitted to defendant sufficed to establish its prima facie case in summary judgment. Inasmuch as defendant, failed to timely deny plaintiffs no-fault claim within 30 days of receipt (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8[c]), it is precluded from raising the defense of lack of medical necessity ( see Central Gen. Hosp. v. Chubb Group of Ins. Cos. as., 90 NY2d 195, 199).
Accordingly, plaintiffs cross motion was properly granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees due on $1,571.80 (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare's Hosp. v. Allstate Ins. Co., 215 AD2d 641.