Lof Med. Supply, Inc. v GEICO Gen. Ins. Co., 2013 NY Slip Op 50595(U)(App. Term 2d Dept. 2013)
This is a rare application of “Avenue T” where the court held the defense was insufficient as a matter of law and awarded summary judgment to the plaintiff.
(1) STATEMENT OF LAW
“A no-fault provider establishes its prima facie case “by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as [*2]a matter of law”
(2 ) APPLICATION
“[P]laintiff demonstrated that defendant’s proffered defense of lack of medical necessity was without merit as a matter of law, in that the Civil Court had issued a prior order precluding defendant from offering any evidence in support of its claimed defense. In opposition to the motion, defendant failed to raise a triable issue of fact”
