Devonshire Surgical Facility v American Transit Insurance Company (2011 NY Slip Op 51660(U))

Devonshire Surgical Facility v American Transit Insurance Company

2011 NY Slip Op 51660(U)

Decided on September 9, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

Devonshire Surgical Facility and Carnegie Hill Orthopedic Services, P.C., a/a/o Olga Mashurova, Plaintiffs-Respondents, - -

against

American Transit Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated October 26, 2009, which granted plaintiffs' motion for summary judgment on the complaint.

Order (Peter H. Moulton, J.), dated October 26, 2009, modified only to the extent of remanding the matter to Civil Court for calculation of statutory interest due plaintiffs in accordance with this decision; as modified, order affirmed, without costs.

We agree with Civil Court that plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on their claims for first-party no-fault benefits by submitting proof that the prescribed statutory billing forms had been mailed and received by defendant on January 22, 2001, and that payment was overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]). In opposition, defendant failed to raise a triable issue. Thus, plaintiffs were properly granted summary judgment (see Devonshire Surgical Facility v American Tr. Ins. Co., 31 Misc 3d 128[A], 2011 NY Slip Op 50512[U] [2011]), and are entitled to statutory interest from the date the claim became overdue, viz. "30 days after the claim[s] w[ere] presented to the defendant for payment" (Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]; see Insurance Department Regulations [11 NYCRR] § 65.15[h][1] [now 65-3.9(a)]). We remand the matter to Civil Court for calculation of the appropriate interest due plaintiff on these claims, taking into account the applicability, if any, of the tolling provisions of Insurance Law § 5106(a) (see 11 NYCRR 65.15[h][3] [now 65-3.9(c)]; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; Brooklyn Chiropractic Assoc., P.C. v Progressive Cas. Ins. Co., 17 Misc 3d 13, 15 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: September 09, 2011