S & M Supply Inc. v State-Wide Ins. Co. (2005 NYSlipOp 51046(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered January 20, 2004, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover assigned first-party no-fault benefits for medical equipment provided its assignor, plaintiff established its prima facie entitlement to summary judgment by its proof that it submitted the functional equivalent of the statutory claim forms (see 11 NYCRR 65-3.5 [a], [f]) setting forth the fact and amount 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]; King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th & 10th Jud Dists]; see also Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists]). Further, the affidavit of a plaintiff’s “officer and billing manager” is a proper vehicle in which to assert the facts of a no-fault claimant’s submission of a benefits application, whether for health services or medical equipment (e.g. Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U], supra), and there is no requirement that a billing manager allege in his supporting affidavit that he had personal knowledge that the equipment was furnished to plaintiff’s assignor (see King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d at 56) particularly where, as here, assignor signed a document acknowledging receipt of the prescribed equipment, the authenticity or accuracy of [*2]which was unchallenged below. If defendant questioned the document’s propriety, its remedy was to invoke the verification procedures.

Insofar as the determination below rests on the purported absence of proof of an assignment, it is erroneous as plaintiff submitted copies of combined equipment receipt/assignment of benefits forms, which submission defendant does not deny. In any event, if defendant perceived any defect on the face of the assignments or required further proof thereof, its remedy was to seek verification of same, or at least, to allege such defect as a basis of a timely denial (New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70, 71 [App Term, 2d & 11th Jud Dists 2004]). With respect to the alleged lack of authentication of the assignor’s signature (raised for the first time on appeal), it is unpreserved and without merit. “The lack of authentication of an assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same” (A.B. Med. Servs. PLLC v Electric Ins. Co., 7 Misc 3d 130[A], 2005 NY Slip Op 50542[U] [App Term, 2d & 11th Jud Dists]; see also Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U], supra; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d at 71).

Accordingly, plaintiff’s motion for summary judgment should have been granted, and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: July 06, 2005