SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (A. Gazzara, J.), entered October 21, 2003, granting plaintiff’s cross motion for summary judgment.

Order unanimously reversed with $10 costs and plaintiff’s cross motion for summary judgment denied.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [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]).

It is uncontroverted that defendant did not deny plaintiff’s claim within the statutory period. Consequently, defendant is precluded from raising most defenses (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including any deficiency in the assignments (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; A.B. Med. [*2]Servs. PLLC. v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Moreover, defendant’s requests for examinations under oath did not toll the 30-day claim determination period inasmuch as the applicable insurance regulations did not contain a provision entitling an insurer to an examination under oath (see King’s Med. Supply v Kemper Auto & Home Ins. Co., 3 Misc 3d 131[A], 2004 NY Slip Op 50401[U] [App Term, 2d & 11th Jud Dists]).

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp, 90 NY2d at 199). Consequently, a triable issue of fact exists as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, plaintiff’s cross motion for summary judgment is denied.
Decision Date: June 03, 2005

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court, Bronx County, entered November 20, 2003 (Irving Rosen, J.) denying its motion for summary judgment.

PER CURIAM:

Order entered November 20, 2003 (Irving Rosen, J.) reversed, with $10 costs, plaintiff’s motion for summary judgment is granted and the matter is remanded to Civil Court for (1) the assessment of appropriate attorney’s fees and interest pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder, and (2) the entry of a judgment in favor of plaintiff and against defendant in the principal sum of $2,321.38, plus appropriate interest and attorney’s fees.

Plaintiff was entitled to summary judgment on the complaint inasmuch as defendant insurance company did not timely deny plaintiff’s claim for no-fault benefits within 30 days after proof of claim was received (see Insurance Law § 5106[a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Under the circumstances, defendant insurer [*2]waived any defenses relating to the medical necessity of the treatment rendered (Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]) as well as to the facial sufficiency of the patient’s assignment of no-fault benefits submitted by plaintiff (Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996], lv dismissed 89 NY2d 1030 [1997]).

Furthermore, defendant failed to raise an issue of fact as to whether defendant’s denial of coverage was “premised on the fact or founded belief that the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 8 AD3d 250 [2004]; Mt. Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]).

This constitutes the decision and order of the court.
Decision Date: June 02, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Queens County (J. Golia, J.), entered January 12, 2004, as denied its motion for summary judgment. Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $4,117.18 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the facts and the amount of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Inasmuch as defendant failed to pay or deny claims in the sums of $1,800, $1,588.44 and $728.74 within the 30-day statutory period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses with respect thereto (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 [*2]NY2d 274, 282 [1997]).
The remaining claims were timely denied on the ground that the bills submitted were “not properly no-fault rated” and that the fees charged were in excess of the Workers’ Compensation fee schedule. Such defenses raise triable issues of fact warranting the denial of plaintiff’s motion for summary judgment as to said claims.

Accordingly, partial summary is granted plaintiff in the sum of $4,117.18 and the matter is remanded to the court below for a calculation of the statutory interest and an
assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: June 01, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (S. Krauss, J.), entered on April 8, 2004, which denied their motion for summary judgment and dismissed the complaint with leave to replead.

Order reversed without costs, complaint reinstated, plaintiffs’ motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees; entry of judgment stayed for 45 days from the date of the order entered hereon, with leave to defendant to renew upon submission of proper papers within said period.

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs established a prima facie entitlement to summary judgment by proof that they submitted their claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law
§ 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). While the claims of the three plaintiffs were pleaded under one cause of action in the [*2]complaint, the specific claims and amounts sought to be recovered by the individual plaintiffs were stated separately as to each of the plaintiffs. Under the circumstances, and in the absence of any showing of prejudice to defendant, we find there was no basis to deny the plaintiffs’ motion for summary judgment and to dismiss the complaint with leave to replead (see CPLR 3014).

Defendant’s denial of plaintiffs’ claims, in essence, asserted misrepresentation and/or fraud by plaintiffs and the plaintiffs’ assignor. Since the defendant failed to pay or deny the claim within the 30-day statutory period (11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defense of provider fraud (id. at 285; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Defendant, however, is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). In opposition to plaintiffs’ motion for summary judgment, and in support of its defense of fraud, defendant submitted the affirmation of its attorney who lacked personal knowledge of the investigation (Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, supra), and unsworn investigative reports which did not constitute competent proof in admissible form (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). While hearsay evidence may be admissible in opposing a motion for summary judgment, there must be an acceptable excuse for failure to tender the proof in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]), which defendant has failed to proffer. Accordingly, plaintiffs’ motion for summary judgment should have been granted.

Inasmuch as the issues raised herein involve an alleged staged collision in furtherance of an insurance fraud scheme, and in consideration of the strong public policy to stem the perpetration of no-fault insurance fraud underlying the revisions to the insurance regulations (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861-862 [2003]), defendant is granted leave to renew upon
submission of proper papers in opposition to plaintiffs’ motion for summary judgment (see CPLR 2221), to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[]not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Accordingly, the complaint is reinstated, plaintiffs’ motion for summary judgment granted, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees; entry of judgment is stayed for 45 days from the date of the order entered hereon, with leave to defendant to renew upon submission of proper papers within said period.

Patterson, J.P., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to modify the order and deny plaintiffs’ motion for summary judgment in the following memorandum:

Contrary to the holding of the majority, I find that the papers submitted by the defendant in opposition to the plaintiffs’ motion for summary judgment were sufficient to raise an issue of fact as to whether the defense of fraud was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

For the reasons stated in my dissent in Ocean Diagnostic Imaging v Lancer Ins. Co. (6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]), I find that the unsworn reports when submitted in opposition to a motion for summary judgment and accompanied by an affidavit or affirmation of an attorney which makes reference to such report, are sufficient for the purpose of raising a triable issue of fact. This Court must, when deciding a motion for summary judgment, interpret the evidence in the light most favorable to the non-movant (see Weiss v Garfield, 21 AD2d 156 [1964]). This is especially true where there is an allegation of fraud.

Accordingly, I would modify the order of the lower court and would deny the plaintiffs’ motion for summary judgment.
Decision Date: May 23, 2005

[*1]

Civil Court of the City of New York, Kings County, May 23, 2005

APPEARANCES OF COUNSEL

Israel, Israel & Purdy (W. Matthew Iler of counsel), for plaintiff. Picciano & Scahill (Patrick Morale of counsel), for defendant.

OPINION OF THE COURT

Eileen N. Nadelson, J.

This action arose pursuant to the provisions of New York’s No-Fault Insurance Law.

Plaintiff submitted a claim to defendant insurer for first-party benefits for an MRI it performed on its assignor’s knee pursuant to a prescription written by a chiropractor. Defendant timely denied the claim based on a peer review by a chiropractor, alleging that the MRI was not medically necessary.

At trial, the question arose as to whether this claim for an MRI of the assignor’s knee performed by plaintiff pursuant to a prescription written by a licensed chiropractor may be recovered under the No-Fault Law from an insurer. Defendant insurer alleges that chiropractors are not permitted to prescribe MRIs for the knee, and therefore any prescription written by a chiropractor for a part of the human body it is not permitted to treat is automatically medically unnecessary. After research and argument, the court finds this is an issue of first impression.

The basic questions presented in this case concern whether a given diagnostic tool is medically necessary regardless of the medical professional who orders it and the degree of inquiry, if any, a medical supplier must perform regarding the authority of the prescribing doctor to write the prescription in question in order to recover first-party no-fault benefits.

Chiropractors are licensed in this state pursuant to the New York State Education Law. Under section 6551 (1) of the Education Law, the profession of chiropractic is defined as “detecting and correcting by manual or mechanical means structural imbalance, distortion, or subluxations in the human body for the purpose of removing nerve interference and the effects thereof, where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.”

This section of the statute continues to enumerate various restrictions imposed on chiropractors with respect to the methods of treatment they may employ and the diseases and malfunctions they may or may not treat, as well as the nature of the medicines and medical supplies they may prescribe. The court notes that this portion of the Education Law does not mention the use or prescription of MRIs.

In Bako v Decaro (2002 NY Slip Op 50271[U], *4 [Civ Ct, Richmond County 2002]), the court stated that a licensed chiropractor may use “for diagnostic purposes those clinical laboratory services which are contained within the required coursework of all registered doctoral programs in chiropractic in the State.” The court further noted that the study of MRIs is part of the core curriculum at chiropractic schools licensed in the State of New York. In its decision, the court concluded that section 6551 of the Education Law does not prevent chiropractors from using MRIs as a diagnostic tool. In this case the chiropractor whose bills were in question analyzed MRIs ordered by a neurologist on an area of the patient’s body that went beyond the vertebral column.

In a case of first impression, the court in ABC Med. Mgt. v GEICO Gen. Ins. Co. (3 Misc 3d 181 [Civ Ct, Queens County 2003]) held that a medical equipment supplier can recover no-fault first-party benefits for prescriptions written by a chiropractor.

Based on the provisions of the Education Law and the two above-cited cases, the court concludes that, as a general rule, a medical supplier may recover first-party no-fault benefits for prescriptions for MRIs written by a chiropractor. However, this conclusion does not answer the immediate question, which relates to an MRI prescription written by a chiropractor for a part of the human body not within his licensed ability to treat.

As part of its case-in-chief, defendant called a chiropractor as its expert witness who testified that chiropractors do not prescribe MRIs for a patient’s knee because that joint is not within a chiropractor’s area of expertise and training. Usually, the chiropractor will refer the patient to an orthopedist for treatment and diagnosis of a knee who may then, in turn, order an MRI of the knee. Evidence at trial indicated that the prescribing chiropractor referred the patient to a physician who examined the knee but did not prescribe an MRI.

Defendant’s expert further testified that a chiropractor will use an MRI of the knee as a diagnostic tool because, although vertebral problems do not cause symptoms in the extremities, the opposite is not true, and a problem in a patient’s knee may result in symptoms appearing on the vertebral column. This witness also testified that chiropractors do prescribe MRIs for the vertebral column. [*2]

Based on the testimony of defendant’s expert witness, the court concludes that it is not unusual for a chiropractor to prescribe an MRI of the vertebral column or to use an MRI of a patient’s knee prescribed by another medical specialist as a means of diagnosing a patient’s problem. Therefore, simply because chiropractors do not prescribe MRIs of the knee does not mean that such a diagnostic tool is not medically necessary in a given instance. The court notes that no evidence was proffered that the MRI in question was of no assistance to the treating chiropractor.

The only issue remaining, therefore, is whether there is a legal duty imposed on the medical supplier or provider to investigate the authority of the author of the prescriptions it fills in order to receive first-party no-fault benefits for the services it provides.

This court could find no legal authority on point, either legislative or judicial. The court notes that this situation is different from those in which the provider or supplier is not licensed or authorized to perform the services being billed, for which recovery under the No-Fault Law does not lie. (Valley Physical Medicine & Rehabilitation v New York Cent. Mut. Ins. Co., 193 Misc 2d 675 [App Term, 2d Dept 2002].) In the instant case the assignee supplier is licensed to perform the services rendered, and there is no dispute as to the fact that the services were performed.

Based on the specific facts presented in this case, the court concludes that it was not unreasonable for plaintiff to prepare an MRI prescribed by a licensed chiropractor and that there is no evidence that this MRI was not medically necessary as a diagnostic tool. Therefore, plaintiff may seek recovery for the services it rendered from its assignor’s insurer. This is not a situation in which the prescription would be so unusual or extraordinary so as to raise questions of the authority of the prescribing doctor which might impose a duty of inquiry.

If there were any wrongdoing, it would be the action of the chiropractor, not the plaintiff nor the plaintiff’s assignor. Consequently, there would be no reason to preclude recovery under the No-Fault Law.

Judgment for plaintiff in the amount of $878.67 plus statutory interest, costs and attorneys’ fee.

—[*1]

In a proceeding pursuant to CPLR article 75 to vacate an arbitrator’s award, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rios, J.), dated July 16, 2004, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The appellant, State Farm Mutual Automobile Insurance Company (hereinafter State Farm), argues that, in this “priority of payments” dispute, the arbitrator erred in concluding that State Farm was 100% liable for the payment of first-party benefits solely on the basis that State Farm’s insured vehicle was the only vehicle that actually made physical contact with the injured pedestrian (see Insurance Law § 5105 [b]; 11 NYCRR 65-3.12 [e]; 65-3.14 [b] [3]; 65.15 [m] [2] [iii]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455 [1989]). In opposition, Lumbermens Mutual Casualty Company (hereinafter Lumbermens) argues that the arbitrator’s award was proper in light of the absence of any competent evidence that would tend to prove that the negligence of its insured driver, whose car did not make any physical contact with the injured pedestrian, was in some way at fault in connection with the occurrence. [*2]

We agree with Lumbermens that the award could properly have been based on State Farm’s failure to prove any negligence on the part of Lumbermens’ insured driver. Also, even assuming that the arbitrator might have misapplied applicable law as argued by State Farm, the arbitrator’s award was at least supported by a “reasonable hypothesis” and was not contrary to what could be fairly described as settled law (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]; see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231 [1982]; Matter of Hegarty v Board of Educ. of City of N.Y., 5 AD3d 771 [2004]; Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533 [1996]; Matter of Adams v Allstate Ins. Co., 210 AD2d 319 [1994]; Matter of Shand, 74 AD2d 442, 454 [1980]). Thus, the arbitrator’s award was not subject to vacatur under CPLR 7511 (b) (1). Prudenti, P.J., Schmidt, Luciano and Lifson, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (E. Spodek, J.), dated April 29, 2004, as denied its motion for summary judgment.

Order insofar as appealed from affirmed with $10 costs.

In this action to recover the sum of $741.03 in first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Defendant was not, however, precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s SIU investigator was sufficient to demonstrate that defendant’s denial was based [*2]upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.

Contrary to defendant’s contention, defendant was not entitled to summary judgment based upon plaintiff’s assignor’s nonattendance at scheduled examinations [*3]
under oath (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Queens County (D. Butler, J.), entered March 10, 2004, which granted defendant’s motion, inter alia, to vacate a default judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered
to plaintiffs’ assignors, a default judgment was entered against defendant. A motion to vacate a default judgment is addressed to the sound discretion of the motion court and the court’s determination “will be upheld in the absence of an improvident exercise of that discretion” (Braddy v 601 Crown St. Corp., 282 AD2d 638, 639 [2001]). Upon the totality of the circumstances presented, it cannot be said that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.
Decision Date: May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Queens County (D. Butler, J.), entered February 27, 2004, which granted defendant’s motion to vacate a default judgment.

Order unanimously affirmed without costs. [*2]
In this action to recover first-party no-fault benefits for medical services rendered to plaintiffs’ assignor, a default judgment was entered against defendant. A determination vacating a default “rests in the sound discretion of the court and will be upheld in the absence of an improvident exercise of that discretion” (Braddy v 601 Crown St. Corp., 282 AD2d 638, 639 [2001]). Upon the totality of the circumstances presented, it cannot be said that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.
Decision Date: May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (D. Pineda-Kirwan, J.), entered December 16, 2003, denying its cross motion for summary judgment and granting plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.

Plaintiff health care provider commenced this action to recover $1,301.26 in first-party no-fault benefits for medical services rendered to its assignor, Rafael Rodrigues, for injuries he allegedly sustained in a motor vehicle accident on December 3, 2000. Upon a review of the record, we find that plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). It was not, however, precluded from asserting the defense that the alleged injuries did not arise out of a covered accident ([*2]see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). The affidavit submitted by defendant’s investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment should have been denied.

Contrary to defendant’s contention, defendant was not entitled to summary judgment based upon plaintiff’s assignor’s nonattendance at scheduled examinations [*3]
under oath (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56, 2004 NY Slip Op 24482 [App Term, 2d & 11th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 19, 2005