August 11, 2005

Amaze Med. Supply Inc. v Hereford Ins. Co. (2005 NYSlipOp 51331(U))

Headnote

The court considered a motion for summary judgment in a case involving a claim for first-party no-fault benefits for medical supplies provided to an assignor. The plaintiff established a prima facie case for summary judgment by demonstrating that it submitted claims and that payment of the benefits was overdue. In response, the defendant submitted peer reviews that raised a triable issue as to the medical necessity of the equipment. The main issue decided in the case was whether the plaintiff was entitled to summary judgment for the recovery of first-party no-fault benefits. The court held that the order denying the plaintiff's motion for summary judgment was affirmed without costs, indicating that there was a genuine issue as to the medical necessity of the equipment, and therefore summary judgment was not appropriate.

Reported in New York Official Reports at Amaze Med. Supply Inc. v Hereford Ins. Co. (2005 NYSlipOp 51331(U))

Amaze Med. Supply Inc. v Hereford Ins. Co. (2005 NYSlipOp 51331(U)) [*1]

Amaze Med. Supply Inc. v Hereford Ins. Co.

2005 NYSlipOp 51331(U)

Decided on August 11, 2005

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 11, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
2004-1070 K C NO. 2004-1070 K C

Amaze Medical Supply Inc., a/a/o Lacos Moscoso Martinez, Appellant,
against
Hereford Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered June 15, 2004. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

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 claims, setting forth the fact and the amounts of the losses 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 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d &
11th Jud Dists]). In opposition to the motion, defendant submitted peer reviews asserting a factual basis and medical rationale sufficient to raise a triable issue as to the medical equipment’s medical necessity (Park Health Ctr. v Peerless Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51687[U] [App Term, 2d & 11th Jud Dists]).

Pesce, P.J., and Patterson, J., concur.

Golia, J., concurs in a separate memorandum. [*2]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
AMAZE MEDICAL SUPPLY INC.
a/a/o Lacos Moscoso Martinez,

Appellant,

-against-
HEREFORD INSURANCE COMPANY,

Respondent.

Golia, J., concurs with the result only, in the following 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.
Decision Date: August 11, 2005