Opinion
2003-50 S C.
Decided December 22, 2003.
Appeal by plaintiff from an order of the District Court, Suffolk County (H. Bergson, J.), entered October 18, 2002, denying its motion for summary judgment.
Order unanimously reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees.
PRESENT: DOYLE, P.J., WINICK and SKELOS, JJ.
In this action to recover assigned first-party no-fault insurance benefits, defendant insurer objected to plaintiffs claim for medical equipment on the ground that the supplier's prices exceeded the prevailing rates for such equipment in its "geographic location" (cf. 11 NYCRR 68.5 [b], Reg. No. 83). The Insurance Department regulation permitting reference to "the prevailing fee in the geographic location of the provider" to determine appropriate no-fault compensation pertains only where "the superintendent has not adopted or established a fee schedule applicable to the provider" ( id.; e.g. Tucciarone v. Progressive Ins. Co., 204 AD2d 864). The regulations, however, explicitly limit a provider's medical equipment claims to 150 percent of cost (11 NYCRR App. 17-C, Part E [b] [1]) which clearly is an applicable fee schedule within the contemplation of 11 NYCRR 69.5 (b) ( see King's Med. Supply v. Travelers Prop. Cas. Corp., 194 Misc 2d 667, 673). As "[tjhe purpose of [Insurance Law § 51083 and the fee schedules promulgated thereunder [was] 'to significantly reduce the amount paid by insurers for medical services, and thereby help contain the no-fault premium" ( Goldberg v. Corcoran, 153 AD2d 113, 118), we must assume that the 150 percent rule represents a legislative determination that the net effect of this straightforward, categorical limitation on fees, coupled with suppliers' marketplace competition to moderate prices (or at least to minimize price disparities), "help[s] contain the no-fault premium" (id.). If the premises underlying this determination are empirically unsound, the solution is remedial legislation.