January 27, 2004

Amstel Chiropractic v Omni Indem. Co. (2004 NY Slip Op 50088(U))

Headnote

The plaintiff providers sued to recover $5,465.42 in first-party no-fault benefits, and the Civil Court granted them summary judgment and denied the insurer's cross motion. The Appellate Term found that the providers established a prima facie case by showing complete proofs of claim that the insurer neither paid nor denied within the statutory period. The insurer argued that the assignor failed to appear for an examination under oath and committed fraud. The court rejected the first defense because the regulations then in effect did not authorize such examinations, and found the attorney's affidavit on fraud was speculative and insufficient. The order was affirmed.

Reported in New York Official Reports at Amstel Chiropractic v Omni Indem. Co. (2004 NY Slip Op 50088(U))

[*1]
Amstel Chiropractic v Omni Indem. Co.
2004 NY Slip Op 50088(U)
Decided on January 27, 2004
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the Official Reports.


Decided on January 27, 2004
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:ARONIN, J.P., PATTERSON and RIOS, JJ.
NO. 2003-347 Q C

AMSTEL CHIROPRACTIC P.C JYQ ACUPUNCTURE P.C. a/a/o Wendy Martinez, Respondents,

against

OMNI INDEMNITY COMPANY, Appellant.


Appeal by defendant from an order of the Civil Court, Queens County (B. Siegal, J.), entered November 26, 2002, granting plaintiffs’ motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint.


Order unanimously affirmed without costs.

In or about November 2001, plaintiffs commenced this action to recover $5,465.42 in first-party no-fault benefits for health services rendered to their assignor, as well as statutory interest and attorney’s fees, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered November 26, 2002, the court below granted plaintiffs’ motion and denied defendant’s cross motion.

A review of the record indicates that plaintiffs established their prima facie entitlement to summary judgment by showing that they submitted complete proof of claims to defendant in the amount of $5,465.42, which defendant did not pay or deny within the statutory period (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant asserts that it denied the claims because the assignor failed to appear for an examination under oath and committed fraud on her application for insurance. We note, however, that at the applicable time, the insurance regulations contained no authorization for examinations under oath (see Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]; cf. 11 NYCRR 65-3.5 [e]). Moreover, the attorney’s affidavit, consisting of unsubstantiated hypotheses and suppositions, is legally insufficient to support defendant’s fraud [*2]allegation (see e.g. Penny v Pembrook Mgt., 280 AD2d 590, 591 [2001]). Consequently, defendant failed to show a material issue of fact requiring a trial of the action and we find that the court below acted properly in granting plaintiffs’ motion for summary judgment and denying defendant’s cross motion for dismissal.
Decision Date: January 27, 2004