March 26, 2004

S & M Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50217(U))

Headnote

The court considered the fact that the plaintiff, S & M Supply Inc., was suing to recover first-party no-fault benefits for medical supplies provided to an injured assignor. The main issue decided was whether the plaintiff's motion for summary judgment should be granted. The court held that the plaintiff's motion for summary judgment is granted for the principal sum of $1,018.47, and remanded the matter to the court below for a calculation of statutory interest and an assessment of attorney's fees. The court found that the defendant's submission of only a portion of an unsworn letter from its medical expert did not set forth a factual basis and medical rationale for the rejection of coverage on the ground that it was not medically necessary, and therefore, the plaintiff's motion should be granted.

Reported in New York Official Reports at S & M Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50217(U))

S & M Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50217(U)) [*1]

S & M Supply v Kemper Auto & Home Ins. Co.

2004 NY Slip Op 50217(U)

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This opinion is uncorrected and will not be published in the printed Official Reports.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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT: ARONIN, J.P., GOLIA and RIOS, JJ.
NO. 2002-1688 K C

S & M SUPPLY INC., a/a/o ALBERT SOMERSALL, Appellant,
against
KEMPER AUTO & HOME INS. CO., Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (M. Solomon, J.), dated October 10, 2002, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted for the principal sum of $1,018.47 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

Plaintiff sued to recover first-party no-fault benefits for medical supplies it provided to the injured assignor. Plaintiff’s moving papers established a prima facie case for summary

SM-1

judgment (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff’s motion, defendant submitted only a portion of an unsworn letter from its medical expert which as submitted did not set forth a factual basis and medical rationale for the rejection of coverage on the ground that it was not medically necessary. Accordingly, plaintiff’s motion should be granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 (b) (6); see also St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).

SM-2

Decision Date: March 26, 2004