May 24, 2006

Ultra Diagnostics Imaging v Empire Ins. Co. (2006 NY Slip Op 51337(U))

Headnote

The relevant facts the court considered were that Ultra Diagnostics Imaging was seeking to recover first-party no-fault benefits for medical services rendered to its assignor, David Pyon. The main issue decided was whether Ultra Diagnostics Imaging established a prima facie entitlement to summary judgment by proving that it submitted the claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue. The holding of the case was that plaintiff's motion for summary judgment was granted because they established a prima facie entitlement, and the matter was remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees. The burden then shifted to the defendant to demonstrate a triable issue of fact, which they failed to do. Consequently, the court reversed the order, granted plaintiff's motion for summary judgment, and remanded the case for further proceedings.

Reported in New York Official Reports at Ultra Diagnostics Imaging v Empire Ins. Co. (2006 NY Slip Op 51337(U))

Ultra Diagnostics Imaging v Empire Ins. Co. (2006 NY Slip Op 51337(U)) [*1]

Ultra Diagnostics Imaging v Empire Ins. Co.

2006 NY Slip Op 51337(U) [12 Misc 3d 139(A)]

Decided on May 24, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-959 Q C.

Ultra Diagnostics Imaging, d/b/a Kings Highway Diagnostic Imaging P.C., a/a/o David Pyon, Appellant,
against
Empire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered January 6, 2005. The order denied plaintiff’s motion for summary judgment.

Order 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 first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the claim, setting forth the fact and the amount of the loss 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to demonstrate a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The defendant submitted no opposition in the court below to overcome plaintiff’s prima facie case. Accordingly, the plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 24, 2006