Spineamericare Med., P.C. v United States Fid. & Guar. Co. (2006 NY Slip Op 51293(U))

Spineamericare Med., P.C. v United States Fid. & Guar. Co.

2006 NY Slip Op 51293(U) [12 Misc 3d 138(A)]

Decided on July 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Spineamericare Medical, P.C. A/A/O RETHA WILLIAMS, Appellant,

against

United States Fidelity & Guaranty Company, CLAIMS & APPRAISAL SERVICES, INC. and FIESTA MANAGEMENT OF L.I., Respondents.

Appeal from an order of the District Court of Nassau County, Fourth District (Randy Sue Marber, J.), entered May 24, 2005. The order denied plaintiff's motion to renew its motion for summary judgment.

Order reversed without costs, plaintiff's motion for leave to renew its motion for summary judgment granted, upon renewal, summary judgment granted in favor of plaintiff in the principal sum of $2,428.83, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees. [*2]

In this action to recover first-party no-fault benefits for health care services provided its assignor, plaintiff moved for summary judgment. Although plaintiff's papers established a prima facie entitlement to summary judgment by proof that it submitted claims, 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]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]), the court denied the motion, "without prejudice," as premature citing plaintiff's failure to comply with outstanding discovery "necessary to allow defendant[s] the opportunity to frame a proper response to the motion." A subsequent order of the court (Steven M. Jaeger, J.) struck defendants' discovery demands, and plaintiff then moved to renew its prior motion for summary judgment and appeals from the denial of said motion.

Defendants failed to interpose a denial within 30 days of receipt of the claims herein at issue, and the denial proffered, even had it been timely interposed, was without effect since it "omitted numerous items of requested information, and thus was incomplete" (see 11 NYCRR 65-3.4 [c] [11]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]). As defendants failed to establish a defense that survived the preclusive effect of its untimely and otherwise ineffective denial, plaintiff is granted summary judgment and the matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.