DIAGNOSTIC REHAB MEDICINE SERV PC v. TRAVELERS INDEMNITY COMPANY (2004)

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Prus, J.), entered June 30, 2003, which granted defendant's motion to dismiss the complaint.

Order unanimously reversed without costs and defendant's motion to dismiss the complaint denied.

In this action to recover assigned no-fault benefits, the purported assignment form is signed by the claimant but does not designate a named assignee.   However, defendant insurer, having failed to seek additional verification or allege any deficiency in the assignment in its denial of claim form, waived any defenses with respect thereto (see Presbyterian Hosp. in City of N.Y. v. Aetna Cas. & Sur. Co., 233 A.D.2d 433, 650 N.Y.S.2d 602 [1996];  A.B. Med. Servs. v. Nationwide Mut. Ins. Co., 6 Misc.3d 70, 792 N.Y.S.2d 289, 2004 N.Y. Slip Op. 24506, [decided herewith];  Park Health Ctr. v. Eveready Ins. Co., 2001 N.Y. Slip Op. 40665[U], 2001 WL 1807733 [App. Term, 2d & 11th Jud. Dists.];   see also New York Hosp. Med. Ctr. of Queens v. New York Cent. Mut. Fire Ins. Co., 8 A.D.3d 640, 779 N.Y.S.2d 548 [2004] ).   Accordingly, defendant's motion to dismiss the complaint should have been denied.   To the extent that (A.B. Med. Servs. v. Progressive Ins., 2003 N.Y. Slip Op. 50790 [U], 2003 WL 21005006 [App. Term, 2d & 11th Jud. Dists.] ), may be inconsistent with our decision herein, we no longer adhere to it.

The parties' remaining contentions are without merit or rendered academic in view of the determinations herein.