King’S Med. Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50401(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (J. Sullivan, J.), entered August 13, 2002, as denied its motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for entry of judgment in the principal sum of $410, the calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff, a medical supply house, instituted this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, it moved for summary judgment on the ground that defendant failed to pay or deny the claim within 30 days of receipt of the proof of claim, in violation of Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]).

A review of the record indicates that plaintiff established its entitlement to summary judgment prima facie by the submission of the statutory forms setting forth “the fact and amount of loss sustained” (Insurance Law § 5106 [a]; see Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s sole ground both for its denial of plaintiff’s claim and opposing summary judgment was the assignor’s failure to appear for an examination under oath. However, the insurance regulations in effect when the claim was submitted, contained no provision requiring the injured person to submit to such an examination (see A.B. Med. Serv. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]; Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]; cf. 11 NYCRR 65-3.5 [*2][e], eff. April 5, 2002), an omission that cannot be remedied by reference to a policy provision requiring an insured’s “cooperation” with defendant’s investigation of a claim in the form of such an examination (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]). As defendant interposed no other proper defense to the claim, either pursuant to its claim denial or in opposition to the motion, summary judgment should have been granted.

Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [iii], [v]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: February 18, 2004