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Supreme Court, Appellate Term, New York.

CHURCH AVENUE MEDICAL CARE, P.C., as Assignee of Roosevelt Cherubin, Appellant, v. ALLSTATE INSURANCE COMPANY, Respondent.

Decided: June 21, 2001

Present:  FLOYD, P.J., COLABELLA and COPPOLA, JJ. Israel & Israel, L.L.P., Great Neck (Neda N. Melamed of counsel), for appellant. Bruno, Gerbino & Macchia, L.L.P., Melville (Thomas M. Gallo of counsel), for respondent.

Order unanimously reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for further proceedings in accordance with the decision herein.

Plaintiff's assignor was in an automobile accident on March 27, 1999.   The plaintiff sues defendant under the no-fault law to recover for medical services it provided to the injured person.

In our opinion, plaintiff's motion for summary judgment should have been granted.   The Insurance Regulations provide, inter alia, that “within 30 calendar days after proof of claim is received, the insurer shall either pay or deny the claim in whole or in part” (11 NYCRR 65.15[g][3] ).   In Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co. (90 N.Y.2d 274, 278, 660 N.Y.S.2d 536, 683 N.E.2d 1), the court stated that “preclusion of the insurance company's ability to deny the claim is the appropriate remedy where, as here, the insurance company neither denies a claim within 30 days after receiving it nor seeks to extend that time by requesting verification in the prescribed forms.”

In Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 659 N.Y.S.2d 246, 681 N.E.2d 413, the court held that there is an exception to the 30 day rule where the defense is that there is no coverage at all.   In Mount Sinai Hosp. v. Triboro Coach Inc., 263 A.D.2d 11, 699 N.Y.S.2d 77, the court held that the exception in Central General (supra ) does not extend to a claim that the treatment rendered was somehow excessive or unnecessary.   In the case at bar, the defendant's defense of lack of medical necessity does not come within the exception set forth in Central General (supra ).   Consequently, the defendant's untimely partial denial of plaintiff's claim entitles plaintiff to the granting of its motion for summary judgment.

Under the circumstances, and consistent with the Court of Appeals' holding in Presbyterian Hosp. in City of New York v Maryland Cas. Co., (supra ), we find that plaintiff is also entitled to statutory interest and attorney's fees (see, St. Clare's Hosp. v. Allstate Ins. Co., 215 A.D.2d 641, 628 N.Y.S.2d 128).   The matter is accordingly remanded to the court below for a calculation of the interest and attorney's fees (see, Insurance Law § 5106[a];  11 NYCRR 66.15[h][i];  67.17[b][6][v];  67.17[b][6][iii] ).