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Devonshire Surgical Facility and Carnegie Hill Orthopedic Services v. American Transit Insurance Company

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


April 5, 2011

DEVONSHIRE SURGICAL FACILITY AND CARNEGIE HILL ORTHOPEDIC SERVICES,
P.C., A/A/O NORMA MUNOZ,
PLAINTIFFS-APPELLANTS,
v.
AMERICAN TRANSIT INSURANCE COMPANY,
DEFENDANT-RESPONDENT.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.

Per curiam.

Devonshire Surgical Facility & Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 5, 2011

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ

Order (Arlene P. Bluth, J.), dated June 4, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $11,929.08. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, plaintiffs Carnegie Hill Orthopedic Services, P.C. and Devonshire Surgical Facility established their prima facie entitlement to summary judgment on their respective claims for $11,929.08, and $3,000 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Specifically, defendant's documentary submissions established its receipt of plaintiffs' claims and that the claims were overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).

In opposition to the plaintiffs' motion for summary judgment, defendant, which was precluded under a so-ordered stipulation from offering certain evidence pertaining to its defense of lack of medical necessity (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]), failed to raise a triable issue of fact (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d at 743; Devonshire Surgical Facility, supra). Accordingly, plaintiffs were entitled to judgment in their favor.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: April 05, 2011

20110405

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