Opinion
2005-287 K C.
Decided December 30, 2005.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered on December 14, 2004. The order, insofar as appealed from, denied defendant's cross motion for summary judgment.
Order, insofar as appealed from, reversed without costs and defendant's cross motion for summary judgment dismissing the complaint granted.
PRESENT:: PESCE, P.J., GOLIA and BELEN, JJ
In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue ( see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742; 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 failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 (g) (3), now 11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses ( see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 NY2d 274, 282).
However, defendant is not precluded from asserting the defense that the alleged injuries were not causally related to the accident ( see Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 199; Mount Sinai Hosp. v. Triboro Coach, 263 AD2d 11, 18-19) and defendant cross-moved for summary judgment to dismiss the complaint on said ground. The bus driver's affidavit, which was not rebutted by plaintiff's assignor, constituted admissible evidence in support of defendant's defense of a lack of causal nexus between the accident and the injuries for which the medical supplies were furnished to plaintiff's assignor, and was sufficient to establish, prima facie, the defense that the injuries did not arise out of an insured incident ( see Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, 199, supra). Since defendant's proof was unrebutted, the court should have granted its cross motion for summary judgment dismissing the complaint.
Pesce, P.J., and Belen, J., concur.
Golia, J., concurs in a separate memorandum.
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.