SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 10, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order modified by denying defendant’s cross motion for summary judgment; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the 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]). Defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]) and failed to show that its time to deny the claim was tolled (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was 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]).

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. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; GPM Chiropractic, P.C. v State Farm Mut. Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op [*2]50861[U] [App Term, 2d & 11th Jud Dists]). Thus, an issue of fact exists as to whether there was a lack of coverage. Consequently, plaintiff’s motion and defendant’s cross motion for summary judgment should have been denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 25, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen Gesmer, J.), entered September 27, 2004. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff’s 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.

In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see e.g. 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]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended claim form to defendant. However, said deficiency was cured by defendant’s acknowledgment of receipt both in its denial of claim form and in the affidavit of defendant’s employee (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff established its prima facie entitlement to summary judgment.

Inasmuch as defendant failed to timely object to the lack of a valid assignment of benefits or to make a timely request for verification of the assignment, it waived any defenses based [*2]thereon (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]).

Contrary to defendant’s contention, the letters from defendant to plaintiff, notifying plaintiff that payment was delayed pending an investigation of the circumstances of the accident as well as the patient’s eligibility for no-fault benefits, did not toll the statutorily prescribed 30-day period (11 NYCRR 65-3.5, 65-3.8 [a] [1]) within which to pay or deny the claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, the denial was untimely and defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Defendant contends that it raised an issue of fact as to whether plaintiff’s claim was part of a fraudulent scheme involving plaintiff and wholesalers of durable medical equipment. While an insurer is not precluded from asserting a fraudulent scheme involving a staged accident, i.e., a lack of coverage defense 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 195, 199 [1997]), defendant’s claim of fraud herein is premised upon an allegation of excessive billing or lack of medical necessity, and such defense is subject to the 30-day preclusion rule (see id.; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29, supra). Accordingly, plaintiff was entitled to summary judgment and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 25, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 11, 2005. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignor. After plaintiff moved for summary judgment, defendant cross-moved, seeking summary judgment dismissing the action in its entirety or, in the alternative, partial summary judgment pursuant to CPLR 3212 (g). The Civil Court denied plaintiff’s motion and defendant’s cross motion, and this appeal by defendant ensued.

Defendant’s notice of appeal and appellate brief limit the issue before this court to whether the defendant was entitled to partial summary judgment upon the claims which it denied due to an alleged lack of medical necessity. Defendant argues that the affirmed peer review reports annexed to its cross motion and upon which said denials were based established defendant’s prima facie entitlement to judgment as a matter of law upon the issue of medical necessity and that plaintiff failed to present evidence in admissible form to demonstrate the existence of an issue of fact with regard to medical necessity.

Assuming arguendo that defendant’s cross motion was sufficient to establish that defendant mailed, within the 30-day claim determination period, the NF-10 denial of claim forms upon which defendant now seeks partial summary judgment, in any event, defendant’s appeal lacks merit. This court has repeatedly held that where a denial of claim form fails to set forth with sufficient particularity the factual basis and medical rationale for its denial based upon lack of medical necessity, the defendant is precluded from asserting said defense (see A.B. Med. [*2]Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]; 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 denial of claim forms submitted herein were insufficient on their face for vagueness in that they merely indicated that the denials were based upon independent medical examinations (IMEs) with no indication that the reports of said IMEs were annexed thereto or sent to the plaintiff under separate cover within the 30-day claim determination period. In view of the foregoing, defendant is not entitled to partial summary judgment as a matter of law upon said claims because defendant may be precluded from asserting lack of medical necessity as a defense to such claims (see A.B. Med. Servs. PLLC, 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U], supra; Amaze Med. Supply, 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 24, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered January 6, 2005. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s 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.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the 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]). The burden then shifted to defendant to demonstrate a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The defendant submitted no opposition in the court below to overcome plaintiff’s prima facie case. Accordingly, the plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 24, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered March 4, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff moved for summary judgment. After defendant opposed the motion, the court denied plaintiff’s motion, finding an issue of fact with regard to medical necessity. Plaintiff appeals, claiming that defendant’s affirmed peer review report was inadmissible because it referred to unaffirmed reports prepared by doctors who treated plaintiff’s assignor.

In Kearse v New York City Tr. Auth. (16 AD3d 45, 51 [2005]), the Appellate Division, Second Department, held that affirmed medical reports prepared by the defendants’ doctors which referred to an unaffirmed magnetic imaging report prepared by plaintiff’s doctor were sufficient to establish defendants’ prima facie entitlement to summary judgment. Such affirmed reports are, therefore, likewise admissible in opposition to a motion for summary judgment to raise a triable issue of fact, as they did in the instant case. Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 24, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered August 3, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff provider moved for summary judgment. In order to establish a prima facie entitlement to summary judgment, plaintiff was required to prove that it submitted the subject claims, setting forth the fact and the amounts 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In support of its motion for summary judgment, plaintiff submitted an affidavit of one of its corporate officers who did not aver that he had personal knowledge of the mailing of the claim forms but merely stated that “proofs of mailings for the billing and documents sent to the examiner are in my possession.” Although plaintiff did annex to the motion papers copies of two certified mail receipts from a Brooklyn post office postmarked July 3, 2002 and August 6, 2002, and two certified return receipt cards from a Hempstead post office postmarked July 8, 2002 and August 6, 2002, there is nothing in the record relating said receipts or cards to the instant claims. We note that plaintiff’s attorney’s affirmation, based on allegations by one who had no personal knowledge that the claims were actually mailed to defendant, is [*2]unsubstantiated hearsay and has no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, the verification request letters annexed to defendant’s opposition papers do not establish defendant’s receipt of plaintiff’s claims since there is likewise nothing in the record relating said verification requests to the instant claims. Since the record is devoid of any competent evidence establishing either plaintiff’s mailing of the claims to defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]) or defendant’s receipt of same, plaintiff did [*3]
not make the requisite showing to establish a prima facie entitlement to summary judgment. Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 24, 2006

Civil Court, Queens County

650959/03

Timothy J. Dufficy, J.

A non-jury trial was held on November 4, 2005. The issue before the court is whether plaintiff’s claim for no-fault benefits should be denied as untimely, since it was filed beyond the 90-day period.

Plaintiff contends it was impossible to submit the claim to the correct insurance company because the driver (the insured) supplied the wrong carrier to the police and by the time plaintiff realized this error the 90-day period to properly file had run.

Defendant contends that although plaintiff timely filed a claim for no-fault benefits within the 90-day period, plaintiff filed with the wrong carrier, therefore it did not receive notice until after the 90-day period had run. Defendant contends the plaintiff must be barred from enforcing the claim due to late notice. Defendant further contends that plaintiff did not prove it was impossible to timely file the claim with the defendant’s insurance carrier Country-Wide Ins. Co.

STIPULATION OF FACTS

Defendant stipulated to plaintiff’s prima facie case and plaintiff stipulated to defendant’s timely mailing of the denial of the claim. At the time of the trial, the court directed that briefs be submitted to the court and it was stipulated that any exhibits attached to the briefs would be admitted into evidence so long as it was exchanged in the course of discovery. In addition an un-redacted copy of the Country-Wide Ins. Co. file was submitted to the court for in-camera review (hereinafter referred to as Bates file).

The following facts are undisputed:

1) an accident took place on October 27, 1998. Osiris Torres, a bicyclist was involved in an auto accident with Stephen Kempisty the insured and owner operator under a valid Country-Wide insurance policy.

2) the New York City Police accident report in evidence shows that the insurance company code was 385 (All-City Insurance Company).

3) Plaintiff filed a timely claim dated December 12, 1998 with All-City Insurance Company.

4) the claim was denied on April 20, l999 by All-City Insurance Company. The denial [*2]states the policy was not in force on the date of the accident and the policy was cancelled on January 7, 1997.

5) Plaintiff then filed a claim with MVAIC shortly after the All-City Insurance denied the claim. On May 20, 1999 MVAIC denied the claim. The basis of the denial by MVAIC was that there was available insurance and that Merchant and Businessmen/Country was then the current insurance company for Stephen Kempisty. When the matter was reported to MVAIC it generated notice to Countrywide on notice dated February 19, 1999 (Bates file Page number 305). The court finds pursuant to the documents submitted to the court in-camera, that All-City was named on the accident report and at that time and all relevant times remained on New York State Department of Motor Vehicles computer as the carrier of record as far as the three digit code is concerned (computer printouts pages, Bates file pages 313,314) submitted in-camera to the court which indicates valid insurance from All City from November 18,1997 to July 6,1999.

6) a claim was filed with Country-Wide on July 30, 1999 explaining why the late claim was submitted indicating such circumstances outside claimants control.

7) the court notes that the MVAIC claim was denied on May 20, 1999, upon learning the correct carrier, plaintiff filed a claim on July 30, 1999, well within 90-days of the MVAIC denial.

On August 12, 1999, County-Wide Insurance Company issued a denial of claim. The reason set forth for this denial was as follows:

“As per regulation 68 of the New York State No-Fault Insurance Law:

In the event of an accident, written notice setting forth details sufficient to identify the eligible insured person along with reasonable obtainable information

regarding the time, place & circumstances of the accident shall be

given to the company or the company’s authorized agents as soon as

practicable, but in no event more than 90 days after the date of accident

pursuant to the above all No-fault benefits are denied.”

ISSUES

The two issues before the Court are: (1) Whether the plaintiffs can maintain an action for No-Fault insurance benefits against the insurer, absent notice to the insurer within 90-days after the date of accident and (2) Whether the subsequent denials issued by the defendant insurance company were proper?

APPLICABLE LAW

The No-Fault regulation in effect at the time of accident which gave rise to the claim was 11 NYCRR65.11(m)(2). This regulation provided in pertinent part that a notice of claim to the insurer must be filed within 90-days of the accident. Late filings were permitted upon “written proof that it was impossible to comply with such limitation due to the specific circumstances beyond the claimant’s control.”

CONCLUSIONS OF LAW

It is well settled that delay on the part of an injured party to give notice may be excused, upon a showing of diligence, where he had difficulty ascertaining the identity of the insured or insurer (see Subia v. Cosmopolitan Mutual Ins. Co., 80 Misc 2d 1090[1975]). Here the court [*3]has substantial evidence before it that the injured party exercised utmost diligence in pursuing the claim by first presenting its claim to All-City Insurance, then to MVIAC, and upon learning that insurance was available, further researching the claim until ultimately establishing Country Wide Ins. Co. as the responsible insurer. Timely notice requirement will not be applied as strictly against the injured party as it would be against the insured. See, Hartford Accident & Indemnity Co. V. CNA Insurance Companies, Sued Herein as CNA Insurance, et al, 99 AD2d 310 [1984]. Therefore, the claim is deemed timely.

The court also notes that it has limited equity jurisdiction pursuant to NY City Civ Ct Act sec. 213 and sec. 905 (e.g. Kuchen v. Daimler Chrysler, 9 Misc 3d 45 [Sup. Ct. App. Term 2nd &11th J.D. Dists.2005]). Thus, the doctrine of equitable estoppel would apply to the fact pattern at hand. Equitable estoppel is the principle by which a party is absolutely precluded both at law and equity from denying or asserting the contrary of any material fact, which by his words or conduct affirmative or negative, intentionally or through culpable negligence, he has induced others or another, who was excusably ignorant of the true facts and who had the right to rely upon such words or conduct, to believe and act upon them thereby, as a consequence reasonably to be anticipated, changing his position in such a way that he would suffer injury if such denial or contrary assertion were allowed. The doctrine prohibits a person upon principles of honesty and fair and open dealing, from asserting rights the enforcement of which would, through his omissions or commission, cause fraud or injustice to be committed (75 NY Jur 2d, Limitations and Laches § 40). It is the holding of the court that the doctrine of equitable estoppel is appropriate in the case at bar. Plaintiff demonstrated he relied on the information provided on the police report by Country Wide’s insured. A claim for no fault benefits was sent to the carrier plaintiff’s had notice of, All-City, diligently within the 90-day period. Plaintiff then acted appropriately and diligently by reporting the claim to MVIAC. By the time the plaintiff received the correct information, the strict 90-day rule has passed. To hold the plaintiff in violation of the 90-day rule would be injustice especially since defendant Country-Wide was aware of a possible claim as early as February 19,1999 (Bates file page 305).

Defendant has not shown how it was prejudiced by the allowance of the filing of such late claim when it was aware of such claim prior to the filing of plaintiffs’ claim. The facts of this specific case clearly document that compliance with the deadline to file a claim within 90 days was impossible due to specific circumstances beyond the claimant’s control ( In the Matter of Medical Society of the State of New York et al v. Gregory Sergio as Superintendent of Insurance of the State of New York et al 100 NY2d 854[2003]; Mantor v General Accident Insurance et.al, 129AD2d 998 [4th dept 1987]; Persaud v Rahman et. al. ,262 AD2d 542 [ 2nd Dept 1999] and Hackensack University Medical Center, et. al v New York City Transit Authority 10 AD2d 675 [2nd Dept 2004])

Accordingly, the court having found that the plaintiff timely notified the defendant of its claim, grants judgment in favor of plaintiff on the first cause of action in the amount of $3,669.03 plus statutory interest, costs and attorney fees.

Judgment is also granted in favor of plaintiff on the second cause of action in the amount of $2,919.24 plus statutory interest, costs, and attorney fees.

_____________________________

TIMOTHY J. DUFFICY, J.C.C. [*4]

Dated: May 23, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered April 20, 2004. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services provided to its assignor. Plaintiff established its prima facie entitlement to summary judgment by showing that it submitted the statutory claim form, 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]).

The defendant was required to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]) unless such period was tolled through verification requests. The defendant timely sent plaintiff a verification request in which it requested the name and license of the person rendering the treatment (11 NYCRR 65-3.6 [b]). The plaintiff’s attorney sent defendant a letter which stated that the requested information was attached. Defendant alleges that it did not receive the requested verification and that it therefore mailed plaintiff’s attorney a follow-up verification request seeking such information, which information plaintiff has yet to provide. The defendant failed to establish that the 30-day period was tolled by the second verification request it allegedly mailed to plaintiff’s attorney since it failed to submit, in admissible form, any proof of mailing of said request or an affidavit from one with personal knowledge that the request was sent to plaintiff’s attorney (see e.g. Presbyterian Hosp. v Maryland Cas. Co., 226 AD2d 613 [1996]). The affidavit of defendant’s litigation specialist was [*2]insufficient to establish proper mailing since there is no allegation by her that she personally mailed the claim, and the affidavit did not contain a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Hertz Corp., 9 AD3d 392 [2004]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]). In view of the foregoing, defendant failed to pay or deny the claim within the 30-day claim determination period and plaintiff’s motion for summary judgment was properly granted.

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., 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 am constrained to agree 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, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered January 13, 2005. The order denied plaintiffs’ motion for summary judgment.

Order reversed without costs, plaintiffs’ motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and attorney’s fees.

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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]).

A review of the record indicates that, in opposition to plaintiffs’ motion for summary judgment, defendant solely relied upon a fraud defense alleging that the claims were based on a non-covered event. We note that defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). However, the documentation submitted by defendant in opposition to plaintiff’s motion, consisting of the affirmation of defendant’s attorney and examinations under oath testimony of several persons involved in the accident, does not show [*2]that the accident was a non-covered event. The inconsistencies between the testimonies do not 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, defendant failed to demonstrate 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]).

Accordingly, the order of the court below is reversed, plaintiffs’ motion for summary judgment is granted and matter remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the order denying plaintiff’s motion for summary judgment in the following memorandum:

Contrary to the holding of the majority, I find that defendant presented sufficient facts and circumstances to establish that its denial 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]).

The supporting papers established certain inconsistencies in the testimonies of the occupants of the subject car. Said papers also disclosed the facts that each of the occupants had several prior claims and that one of the prior claims involved the same two individuals being injured together in another automobile accident.

The confluence of circumstances certainly constitute a “founded belief” that the “accident” may not be a valid covered event.

As correctly stated by the majority, the defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199).

Further, the D.A.V. Chiropractic claim for $303.30 was properly and timely denied due to lack of medical necessity based upon a “negative” IME report. The majority acknowledges the propriety and timeliness of the denial but believes summary judgment is warranted in favor of the plaintiff because the report annexed to the motion papers was an unsworn copy of the report.

For the reasons set forth, in detail, in my dissent in Ocean Diagnostic Imaging v Lancer Ins. Co. (6 Misc 3d 62 [2004]), an unsworn medical report when submitted in opposition to a motion for summary judgment is sufficient to raise a triable issue of fact.
Decision Date: May 19, 2006