February 26, 2004

Amaze Med. Supply v Eagle Ins. Co. (2004 NY Slip Op 50389(U))

Headnote

The court considered the fact that the plaintiff, Amaze Medical Supply Inc., had filed a motion for summary judgment, which was denied by the Civil Court. The main issue decided was whether the plaintiff had provided proper proof of claim for the recovery of no-fault benefits and if the additional documents submitted by the plaintiff raised a triable factual issue. The holding of the case was that the denial of the plaintiff's motion for summary judgment was affirmed, as the inclusion of additional documents for the first time raised a triable factual issue as to whether certain of the no-fault benefits sought were for equipment that was not part of the prescribed course of treatment or for equipment other than what the patient actually received.

Reported in New York Official Reports at Amaze Med. Supply v Eagle Ins. Co. (2004 NY Slip Op 50389(U))

Amaze Med. Supply v Eagle Ins. Co. (2004 NY Slip Op 50389(U)) [*1]

Amaze Med. Supply v Eagle Ins. Co.

2004 NY Slip Op 50389(U)

Decided on February 26, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
NO. 2002-1684 K C

AMAZE MEDICAL SUPPLY INC. a/a/o Mildred Mejia, Appellant,
against
EAGLE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (A. Schack, J.), entered October 7, 2002, denying its motion for summary judgment.

Order unanimously affirmed without costs.

Recovery of no-fault benefits requires a proper proof of claim, i.e. the completed statutory form (11 NYCRR 65-3.3 [d]) or its functional equivalent (11 NYCRR 65-3.5 [a], [f]; S & M Supply Inc. v Allstate Ins. Co., NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]; cf. Interboro Gen. Hosp. v Allcity Ins. Co., 149 AD2d 569, 570 [1989]), and an insured’s proof of a properly submitted claim generally suffices to establish its prima facie case in summary judgment (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Here, however, plaintiffs inclusion of additional documents for the first time upon its motion for summary judgment, namely, a physician’s prescription for medical equipment, which did not match the equipment for which benefits were sought, and a receipt for medical equipment delivered to an insured other than its assignor, raised a triable factual issue, whether certain of the no-fault benefits sought were for equipment that was not part of the prescribed course of treatment or for equipment other than what the patient actually received (see Amaze Med. Supply Inc. v Eagle Ins. Co., supra).
Decision Date: February 26, 2004