Opinion
2003-505 Q C.
Decided April 14, 2004.
Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered January 31, 2003, granting plaintiff's motion for summary judgment in the principal sum of $1,472, and denying its motion for summary judgment dismissing the complaint.
Order unanimously modified by denying plaintiff's motion for summary judgment and granting defendant's motion to the extent of awarding it partial summary judgment dismissing plaintiff's $120 claim; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
In or about June 2002, plaintiff commenced this action to recover first-party no-fault benefits for medical equipment it provided to its assignor pursuant to Insurance Law § 5101 et seq., as well as statutory interest and attorney's fees.
Thereafter, plaintiff moved for summary judgment on its $586 and $886.50 claims. Defendant opposed the motion and moved for summary judgment dismissing the complaint. By order entered January 31, 2003, the court below granted plaintiff's motion for the amount demanded in the complaint ($1,472 rather than $1,472.50) and denied defendant's motion.
A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment on its $586 claim, as well as $766.50 of its $886.50 claim, by showing that it submitted complete proofs of claims which defendant did not pay or deny within 30 days ( see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v. Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d 11th Jud Dists]). We find that inasmuch as neither plaintiff's medical reports nor its prescriptions mention a "TENS accessory kit," for which plaintiff seeks $120, plaintiff failed to submit a properly completed claim form therefor and did not establish its prima facie entitlement to summary judgment for $120. The burden then shifted to defendant to demonstrate a triable issue of fact with respect to the $586 claim and the $766.50 sum ( see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). The record indicates that defendant denied both claims based on the assignor's failure to appear at medical examinations. Inasmuch as the assignor never appeared for an examination, we find that defendant raised a triable issue of fact as to said claims ( see Millennium Med. Diagnostics v. Liberty Mut. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d 11th Jud Dists], affd 306 AD2d 388; cf. Park Health Ctr. v. Liberty Mut. Ins. Co., 191 Misc 2d 91, 92-93). We note that although the denial for the $886.50 claim indicates that it was denied due to plaintiff's failure to make said claim within 180 days of the rendered services ( see 11 NYCRR 65.11 [m] [3]), neither plaintiff's nor defendant's motion papers addressed this issue in the court below, and defendant has not raised this issue in its appellate brief. Consequently, said issue is deemed abandoned and will not be considered by this court ( see Baliva v. State Farm Mut. Auto Ins. Co., 286 AD2d 953).
A review of the record further indicates that defendant failed to establish its entitlement to summary judgment dismissing the complaint in its entirety on the ground that the assignor failed to appear for medical examinations ( Millennium Med. Diagnostics v. Liberty Mut. Ins. Co., NYLJ, Dec. 14, 2001 [App Term, 2d 11th Jud Dists], affd 306 AD2d 388, supra). However, inasmuch as plaintiff did not submit a properly completed claim form for the TENS accessory kit, it did not establish its prima facie entitlement thereto ( see Amaze Med. Supply Inc. v. Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d 11th Jud Dists], supra), and defendant is not required to pay said claim ( see Insurance Law § 5101 et seq.; 11 NYCRR 65.15 [g]). Consequently, that part of defendant's motion seeking dismissal of the $120 claim for the TENS accessory kit is granted. Defendant's remaining contentions lack merit.