Opinion
2002-1695 KC.
Decided April 9, 2004.
Appeal by plaintiff from an order of the Civil Court, Kings County (A. Schack, J.), entered October 7, 2002, denying its motion for summary judgment.
Order unanimously modified by providing that plaintiff's motion for summary judgment is granted to the extent of awarding it partial summary judgment in the sum of $1,347.50, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees, and for all further proceedings on the remaining portion of the claim in accordance with the decision herein; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
For the reasons set forth in Amaze Med. Supply Inc. v. Eagle Ins. Co. (NYLJ, Dec. 29, 2003 [App Term, 2d 11th Jud Dists]), plaintiff established a prima facie case by its properly submitted proof of claim ( e.g. Damadian MRI in Elmhurst, P.C. v. Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th 10th Jud Dists]). Lack of medical necessity is a defense to an action to recover no-fault benefits, which an insurer may assert pursuant to a timely denial, based on a medical examination or a sufficiently detailed peer review report ( Amaze Med. Supply Inc. v. Eagle Ins. Co., supra). Defendant failed to accompany its otherwise timely claim denial with the requisite proof, and in the absence of any other defense raised in the denial form including the purported defense, raised for the first time in opposition to the summary judgment motion, that the benefits sought for medical equipment provided to the assignor exceeded 150 percent of the equipment's cost from the supplier ( 11 NYCRR 68, Appendix 17-C, Part E [b] [1]), defendant is precluded ( cf. Amaze Med. Supply Inc. v. Eagle Ins. Co., supra).
However, in addition to its claim forms, plaintiff's proof in support of its motion for summary judgment contained documents that had not previously accompanied said forms. The documents revealed that the prescribed medical equipment did not include two items, an EMS belt ($78) and an EMS kit ($120), listed in the invoices of supplies delivered and for which benefits were claimed. While the failure timely to object to defects in the proof of claim waives all such objections thereto ( New York Presbyt. Hosp. v. American Tr. Ins. Co., 287 AD2d 699, 701), having interjected an issue of fact which, if true, amounts to a complete defense to a portion of the claim, plaintiff should be estopped from invoking waiver (or preclusion) to avoid a defense that the cost of unprescribed medical equipment is not a recoverable no-fault benefit ( see Amaze Med. Supply Inc. v. Eagle Ins. Co., supra).
Accordingly, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees due on $1,347.50, the portion of the claim for which summary judgment is granted (Insurance Law § 5106 [a]; 65.15 [h] [1]; 11 NYCRR 65.17 [b] [6]; see St. Clare's Hosp. v. Allstate Ins Co., 215 AD2d 641), and for all further proceedings on the remainder of the claim.