July 28, 2008

Mollins v Allstate Ins. Co. (2008 NY Slip Op 51616(U))

Headnote

The court considered the evidence provided by both the plaintiff and defendant in an action to recover first party no-fault benefits. The plaintiff submitted evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue, while the defendant failed to submit the IME report upon which its denials were based or any other evidentiary proof to support its defense of lack of medical necessity. The main issue decided was whether the plaintiff was entitled to partial summary judgment in the principal sum of $2,527.50, and the court held that the plaintiff's motion for partial summary judgment should be granted. The court reversed the previous order and directed the clerk to enter judgment accordingly, as the defendant failed to raise a triable issue and the plaintiff made a prima facie showing of entitlement to partial judgment.

Reported in New York Official Reports at Mollins v Allstate Ins. Co. (2008 NY Slip Op 51616(U))

Mollins v Allstate Ins. Co. (2008 NY Slip Op 51616(U)) [*1]

Mollins v Allstate Ins. Co.

2008 NY Slip Op 51616(U) [20 Misc 3d 141(A)]

Decided on July 28, 2008

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKEON, P.J., SCHOENFELD, HEITLER JJ
570716/07.

Jeff Mollins, DC, a/a/o Lashone Adams, Plaintiff-Appellant, – –
against
Allstate Insurance Company, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Manuel Mendez, J.), entered October 12, 2006, which, inter alia, denied its motion for partial summary judgment in the principal sum of $2,527.50.

Per Curiam.

Order (Manuel Mendez, J.), entered October 12, 2006, reversed, with $10 costs, and plaintiff’s motion for partial summary judgment in the principal sum of $2,527.50 granted. The Clerk is directed to enter judgment accordingly.

In this action to recover first party no-fault benefits, plaintiff made a prima facie showing of entitlement to partial judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Inc. Co., 16 Misc 3d 8 [2007]). In opposition, defendant failed to raise a triable issue since it did not submit the IME report upon which its denials were based or any other evidentiary proof to support its defense of lack of medical necessity (see Vista Surgical Supplies, Inc. Travelers Ins. Co., 50 AD3d 778 [2008]; Response Med. Equip. v General Assur. Co., 13 Misc 3d 129[A], 2006 NY Slip Op 51765[U] [2006]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 28, 2008