General Assurance appealed from an order of the Civil Court, New York County (Peter H. Moulton, J.), which granted summary judgment in favor of plaintiff Response Medical Equipment and denied its cross motion which sought to dismiss plaintiffs counsels independent cause of action for attorneys fees.

The Appellate Term reversed.

While Response established a prima facie entitlement to partial summary judgment on the claims pertaining to assignors James Cartwright, Natasha Cleary, Edwin Milanes, Sharon Meyers, and Pedro Rosa, defendants submissions in opposition with respect to the claims for assignors James Cartwright, Sharon Meyers, and Pedro Rosa were sufficient to raise issues of fact as to whether the 30-day period within which it was required to pay or deny the claims was extended by proper verification requests.

Moreover, defendant supported its defense of lack of medical necessity asserted against the claims of assignors Cartwright and Meyers with sufficiently detailed peer reviews in admissible form. The claim of assignor, Pedro Rosa, was denied for failure to appear for six scheduled independent medical examinations (IMEs). Although defendants affidavit was insufficient to establish the presumption of mailing of the IME requests, it sufficed to raise issues of fact with respect thereto.

That branch of defendants cross motion which sought to dismiss plaintiffs counsels independent cause of action for attorneys fees should have been granted insofar as the second cause of action pleaded in the complaint seeks recovery of statutory attorneys fees on behalf of The Law Offices of Moshe D. Fuld. While Response may be entitled to attorneys fees, no independent cause of action for attorneys fees exists in favor of its attorney.

Comment: Quite often, a no-fault insurer will pay a bill that was untimely denied, only to face a lawsuit for attorneys fees only. I think that a decision like this supports a conclusion that the attorney fee cause of action cannot survive independently. [IA]

Response Med. Equip. a/a/o Raven Applewhite, Neville Brown, James Cartwright, Natasha Cleary, Glenda Gordon, Pedro Rosa, and the Law Office of Moshe Fuld v General Assur. Co.