[*1]
King's Med. Supply v Allstate Ins. Co.
2004 NY Slip Op 50280(U)
Decided on April 9, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2004
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
NO. 2002-1591 K C

KING'S MEDICAL SUPPLY INC. a/a/o B. Guevarra-Francis, Terrence Gregory, Jorge Sanchez, Andy Janash, Eddie Capos, Anthony Harris, Jorge Toledo, Gerthie Rivera, Edward Perez, Andrew Nagel, Jeremy Corenzwit, Jarrod Williams, Evelyn Ayala, Rashid Anjum, Therese Calderon, Dorothy Kelly and Mark Pigatt, Appellant,

against

ALLSTATE INSURANCE COMPANY, Respondent.


Appeal by plaintiff from an order of the Civil Court, Kings County


(D. Kurtz, J.), entered on September 25, 2002, which denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $10,002.86 and by remanding the matter to the
court below for further proceedings in accordance with the decision herein; as so modified, affirmed without costs.

Plaintiff sues to recover the sum of $13,573.32 representing first-party no-fault benefits for medical supplies it provided to the injured assignors. In our opinion, plaintiff's motion for summary judgment should have been granted to the extent of awarding plaintiff partial summary judgment in the sum of $10,002.86, representing those claims which were not denied by defendant until more than 30 days after plaintiff had submitted them (11 NYCRR 65.15 [g] [3]) since, as to said claims, the insurer is precluded from raising the proffered defenses [*2](Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Inasmuch as plaintiff has established a prima facie case, it was entitled to partial summary judgment with respect thereto (see Amaze Med. Supply Inc. v Eagle Ins. Co., supra) including statutory interest and attorney's fees (see St. Clare's Hosp. v Allstate Ins. Co., 215 AD2d 641). The matter is accordingly remanded to the court below for a calculation of such interest and attorney's fees (see Insurance Law § 5106 [a]; former 11 NYCRR 65.15 [h] [1];
65.17 [b] [6]).

However, plaintiff's motion for summary judgment was properly denied as to the remaining claims which defendant had timely denied in accordance with the
Insurance Regulations. Insurance Regulation 11 NYCRR 68, Appendix 17-C, Part E (b) (1) provides:

"(b)(1) For medical equipment and supplies (e.g. TENS units, soft cervical collars) provided by a physician or medical equipment supplier, the maximum permissible charge is 150% of the documented cost of the equipment to the provider."

Issues of fact exist as to whether plaintiff may recover the remaining amount sought, including whether plaintiff actually paid the prices listed in the invoices for the subject supplies so as to entitle it to bill defendant at a rate of 150% thereof.
Finally, it is noted that the assignments were proper and plaintiff had standing to sue (Rehab. Med. Care of N.Y. v Travelers Ins. Co., 188 Misc 2d 176).
Decision Date: April 09, 2004