SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 13, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $1,737 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff established a prima facie case of entitlement to summary judgment by the submission of complete proofs of claims setting forth the fact and the amount of the loss sustained, and that payment was overdue (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).
Plaintiff’s claims in the amount of $1,737 were not denied until more than 30 days after they were submitted (11 NYCRR 65-3.8 [a], [c]). Thus, pursuant to Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274 [1997]), the insurer was precluded from raising most defenses including lack of medical necessity. Accordingly, plaintiff’s motion for summary judgment should have been granted.

We find respondent’s contention concerning the timeliness of the appeal to be without merit.
Decision Date: December 15, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered January 2, 2004, denying its motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiff commenced this action to recover $2,190 in first-party no-fault benefits for medical supplies it provided to its assignor pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiff moved for summary judgment, which motion was denied.

Plaintiff established its 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]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th 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]). Consequently, the burden shifted to defendant to raise a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986])

It is uncontroverted that defendant’s May 2002 denial was untimely. The court below correctly noted that defendant was not thereby precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the investigator’s affidavit set forth sufficient facts to demonstrate that defendant possessed 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]), thus raising an issue of fact warranting denial of plaintiff’s motion for summary judgment (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 [*2]Misc 3d 139[A], 2004 NY Slip Op 50575[U] [App Term, 9th & 10th Jud Dists]).
Decision Date: December 15, 2004

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 (E. Prus, J.), entered February 18, 2004, denying their motion for summary judgment.

Order unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for services rendered to its assignor, plaintiffs established their prima facie entitlement to summary judgment by proof that they submitted a claim, setting forth the fact and the amount of the loss [*2]
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]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

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]). 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]). Accordingly, since defendant demonstrated the [*3]
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]), plaintiffs’ motion for summary judgment was properly denied.

Decision Date: December 14, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered January 6, 2004, denying its motion for summary judgment.

Order unanimously affirmed with $10 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 a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see [*2]
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]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, 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]). 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]). Accordingly, since defendant demonstrated the [*3]
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.
Decision Date: December 14, 2004

[*1]

Supreme Court, Appellate Term, Second Department, December 10, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. McDonald, Carroll, Cohen & Rayhill, New York City (Thomas J. Reilly of counsel), for respondent.

{**6 Misc 3d at 71} OPINION OF THE COURT

Memorandum.

Order insofar as appealed from unanimously affirmed without costs.

In this action to recover assigned no-fault benefits, plaintiffs submitted the affidavit of David Safir, wherein he states that he is the “practice and medical billing manager of plaintiff.” The affidavit is insufficient to establish that plaintiffs provided defendant with properly completed claim forms (see A.B. Med. Servs. v Allstate Ins. Co., 3 Misc 3d 129[A], 2004 NY Slip Op 50373[U] [App Term, 2d & 11th Jud Dists 2004]). Accordingly, plaintiffs failed to establish a prima facie entitlement to no-fault benefits and their motion for summary judgment was properly denied.

We note that the trial court denied plaintiffs’ motion for summary judgment on the ground that plaintiffs did not submit admissible proof authenticating the signature of plaintiffs’ assignor on the assignment form. The insurance regulations, however, do not require that a claimant’s signature be authenticated. Pursuant to the insurance regulations, a health care provider is only required to submit to the insurer a “properly executed assignment” on (1) the [*2]prescribed verification of treatment by the attending physician or other provider of service form (NYS form NF-3), or (2) the prescribed verification of hospital treatment form (NYS form NF-4), or the prescribed hospital facility form (NYS form NF-5), or (3) the prescribed no-fault assignment of benefits form (NYS form NF-AOB) (11 NYCRR 65-3.11 [b] [2]). A health care provider thus satisfies its burden by proof of submission of an assignment to the insurer that conforms to the regulations.

We further observe that defendant’s failure to seek verification of the assignment, or to allege any deficiency in the assignment in its denial of claim form, constitutes a waiver of any defenses with respect thereto (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co., {**6 Misc 3d at 72}6 Misc 3d 68 [2004]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists 2001]).

Pesce, P.J., Aronin and Patterson, JJ., concur.

Civil Court of the City of New York, Kings County

115723/04

Bruce Newborough, P.C., Brooklyn, New York for the plaintiff; McDonell & Adels, P.C. (Lisa E. Hechler), Garden City, New York for the defendant

Ellen Gesmer, J.

The verified complaint alleges that Arthur Scott was injured in a car accident on March 20, 2003 and received treatment from plaintiff to whom he assigned his rights to benefits under the No-Fault Insurance Law §5101 et seq. Plaintiff brings this action, as the assignee of Mr. Scott, to recover $1,340.30 in first party no-fault benefits. Defendant moves for summary judgment on the grounds that plaintiff engaged in a pattern of fraudulent billing practices and has failed to verify its billing for the instant claim. Plaintiff failed to oppose defendant’s motion. Therefore the Court will decide this matter solely on defendant’s moving papers and annexed documentation.

Defendant maintains that it is issued a timely denial because it received the bill at issue on June 16, 2003, issued a request for additional verification on June 27, 2003 and, after [*2]receiving no response from plaintiff, ultimately denied plaintiff’s claim on December 1, 2003. However, defendant’s moving papers do not include any proof of mailing of its request for verification (S & M Supply, Inc. v Geico Ins. Co., 2003 NY Slip Op 51192[U] [2d & 11th Jud Dists 2003]). The affidavit of Ms. Dawn Madalone an Investigator employed by defendant’s Special Investigations Unit does not establish mailing because Ms. Madalone does not state in her affidavit that she has personal knowledge that the requests were sent to plaintiff (Presbyterian Hosp. v Maryland Casualty Ins. Co., 226 AD2d 613 [2d Dept 1996]). Nor does the Madalone affidavit create a presumption of mailing because it does not describe the standard operating procedures plaintiff uses to ensure that its verification requests are mailed (S & M Supply, Inc. v Geico Ins. Co., 2003 NY Slip Op 51192[U] [2d & 11th Jud Dists 2003]). Consequently, having failed to establish that it mailed the requests for verification, defendant has failed to show that its denial of plaintiff’s claim was timely. The fraud which defendant is claiming as a defense to payment of this claim is fraud by the plaintiff medical provider. Although an untimely denial permits a defendant to assert a defense of fraud by the assignor, a claim of fraud by the assignee must be asserted in a timely denial (Melbourne Medical, P.C. v Utica Mutual Ins. Co., 4 Misc 3d 92 [2d Dept 2004]). Consequently, defendant’s motion for summary judgment must be denied.

Even if this claim were not barred by the late denial, defendant would not be entitled to summary judgment in its favor. In order to satisfy its burden on a motion for summary judgment, defendant “must show that the accident was a deliberate event or a part of an insurance fraud scheme.” (A.M. Med., P.C. v NY Cent. Mut. Ins. Co., 2004 NY Slip Op 50298U, *2 [Civil Ct, Queens County 2004]). This is higher than the standard when the defendant is merely opposing a plaintiff’s motion for summary judgment based on a fraud defense; in that event, defendant must submit “facts, in admissible form and with the requisite particularity, to create triable issues of fraud” (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130A (App Term, 2d and 11th Jud Dists 2004), such as an affidavit by a person with personal knowledge of the facts at issue (Melbourne Medical, P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004].

In support of its contention, defendant submits the transcript of the Examination Under Oath (EUO) of Dr. Patricia Garel, in which Dr. Garel states that she never provided psychological services to any of plaintiff’s patients although plaintiff submitted claims to defendant seeking reimbursement for psychological services allegedly rendered by her. However, the transcript of Dr. Garel’s EUO is not executed in accordance with CPLR 3116. CPLR 3116[a] provides that the transcript must be submitted to the witness so that the witness can read it and make any changes to it that are desired. If the witness then signs the transcript under oath, the transcript may be utilized. “Unsigned depositions do not suffice as proof requisite to defeat a motion for summary judgment.” (Pathmark Graphics Inc. v J.M. Fields, Inc., 53 AD2d 531 [1st Dept 1976]; see also Lo Cicero v Frisian, 150 AD2d 761 [2d Dept 1989]). This principle applies equally to an examination under oath taken by an insurance company. (Krupp v Aetna Life & Casualty Co., 103 AD2d 252, 263 [2d Dept 1984]).

In order to use a transcript that is not signed by the witness, if the witness is a nonparty, or, if a party and the transcript is not signed by the witness or certified, it is the burden of the [*3]party proffering the deposition transcript to show that the transcript was sent to the witness to be reviewed for any corrections, and that sufficient time to do so has passed (see Siegel, 1993 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3116:1, 1997-1998 Pocket Part, at 94). A party seeking to use an unsigned deposition transcript must show that the witness was given the opportunity that CPLR 3116 (a) provides to the witness to make sure that the transcript is correct in form and substance. This procedure is necessary to insure that the proponent of the transcript is not relying on an inaccurate transcript (Palumbo v Innovative Communications Concepts, 175 Misc 2d 156, 157-158 [Sup Ct, NY 1997]). In this case, defendant annexes a copy of a letter dated October 21, 2003 addressed to Dr. Garel’s attorneys requesting that she sign the transcript and have it notarized, but defendant does not proffer an affidavit of a person with personal knowledge that this letter was in fact mailed. Consequently, defendant has not shown either that the transcript was properly executed or that the opportunity that CPLR 3116[a] affords the depondent for execution has passed. Therefore, the Court cannot consider the EUO transcript of Dr. Garel because it does not constitute evidence in admissible form under CPLR 3212 (See Reilly v Newireen Assocs., 303 AD2d 214, 220 n.2 [1st Dept 2003]).

In further support of its fraud claim, defendant again relies on the affidavit of Ms. Madalone who states in her affidavit that defendant properly denied plaintiff’s claim based on overwhelming indica of fraud. Ms. Madalone states that her knowledge of the case comes from:

1. Her “review of the file which she maintained, ” 2. Her investigation into plaintiff’s billing practices; 3. A New York State Insurance Department press release concerning the indictment of Dr. Michael Ferrato, Ph.D of Ferrato Psychological Services, P.C. (FPS) 4. Claim forms submitted to defendant by PSG and FPS for various unidentified patients other than plaintiff’s assignor; 5. The transcripts of EUOs of Darcy Greenidge and Allan Gaskin; and 6. The Examination Before Trial (EBT) transcripts of Henry Johnson and Aida Ellis The Court cannot rely on any conclusions reached by Ms. Madalone which are based on unidentified documents in defendant’s investigative file since those documents are not before the court in admissible form (see CPLR 3212[b]; Friends of Animals, Inc. v Assoc. Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979]). The Court also cannot rely on the press release concerning the indictment of Dr. Ferrato since it is not in admissible form. Even if it were in admissible form, Ms. Madalone has failed to establish the relevancy of the indictment to this case since Dr. Ferrato did not treat the assignor in this case. Defendant also annexes to its moving papers reams of redacted documents which the Madalone affidavit contends proves that FPS submitted bills to defendant for the exact same services as those claimed by PSG for the same patient just days apart from the date when PSG claimed to have rendered services. However, since the name of the policy holder, the patient’s name, gender and address are redacted from the documents, there is no way for the Court to make an independent determination as to whether the documents in fact support defendant’s contention. More importantly, the documents are not in admissible form since they are not adequately identified (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130A (App Term, 2d and 11th Jud Dists 2004). Therefore, the Court cannot rely [*4]on Ms. Madalone’s conclusion that these documents prove fraud.

Finally, like the transcript of the EUO of Dr. Garel, the transcripts of the EUOs and EBTs of Ms. Greenidge, Mr. Gaskin, Mr. Johnson and Ms. Ellis cannot be considered on a motion for summary judgment, since they are not executed and the defendant has failed to show that the deponents were given an opportunity to execute the transcripts.

Consequently, all of the documents relied on by Ms. Madalone cannot be considered by this Court in support of defendant’s motion for summary judgment because the documents are not in admissible form. Therefore, defendant failed to satisfy its burden to submit facts in admissible form and with the requisite particularity to establish fraud. Accordingly, defendant’s motion for summary judgment is denied.

This constitutes the Decision and Order of the Court.

Dated: December 8, 2004

ELLEN GESMER

Judge, Civil Court

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (R. Garson, J.), entered June 10, 2003, which granted defendant’s motion to vacate an order granting plaintiff’s motion for summary judgment on default and which restored the matter to the motion calendar for a determination of plaintiff’s underlying motion on the merits.

Order unanimously reversed without costs, defendant’s motion to vacate the order granting plaintiff’s motion for summary judgment denied, and judgment reinstated.

In this action to recover assigned first-party no-fault benefits, after the court awarded plaintiff summary judgment upon defendant’s default, defendant was obligated to establish both a reasonable excuse for its default and a meritorious defense (CPLR 5015 [a] [1]; Parker v City of New York, 272 AD2d 310 [2000]). The insurer’s only defense, that each assignor failed to appear for a scheduled independent medical examination (IME), is without merit and the motion to vacate should have been denied.

Within days of each assignor’s failure to appear for an IME scheduled subsequent to defendant’s receipt of plaintiff’s proofs of claim, defendant denied the assignee’s claims. However, an assignor’s failure to attend a single requested IME does not afford an insurer a valid basis to deny a no-fault claim where the insurer failed to exhaust the follow-up verification [*2]protocols, which required, inter alia, that “if any requested verification has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was originally requested [with a new request]” (11 NYCRR 65.15 [e] [2] [now 15 days,11 NYCRR 65-3.5 (b)]; S & M Supply v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists] [defendant’s rejection of the claim, “before plaintiff’s time to produce the verification had expired, on the ground that it had not received same” was premature and ineffective]; see also 11 NYCRR 65.15 [g] [2] [iii] [“an insurer shall not issue a denial of claim form . . . prior to its receipt of verification of all of the relevant information requested . . .”]; New York Hosp. Med. Ctr. of Queens v County-Wide Ins. Co., 295 AD2d 583, 585 [2002]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 431, 433 [1996]; Glassman D.C., P.C. v State Farm Mut. Auto. Ins. Co., 192 Misc 2d 264, 265 [App Term, 2d & 11th Jud Dists 2002]). As the denials otherwise interposed no substantive defense to the action, and its time to pay or deny the claims having expired (Insurance Law § 5106 [a]), defendant is precluded from interposing defenses with exceptions herein inapplicable (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [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]). Accordingly, defendant’s motion should have been denied on the ground that it has failed to establish a meritorious defense warranting the vacatur of the order granted on default.
Decision Date: December 08, 2004

[*1]

Supreme Court, Appellate Term, Second Department, December 8, 2004

APPEARANCES OF COUNSEL

June D. Reiter, Garden City, for appellant. Amos Weinberg, Great Neck, for respondent.

{**6 Misc 3d at 63} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

Plaintiff health care provider made out a prima facie showing of entitlement to recover no-fault benefits for services rendered to its assignor by the submission of proof that the statutory claim forms had been mailed and received, and that defendant did not pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; 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 2003]). In opposition to plaintiff’s motion for summary judgment, defendant has failed to raise a triable issue of fact.

Defendant’s denial of benefits form indicates that defendant received plaintiff’s claim on October 5, 2001, and that it did not deny the claim until December 19, 2001, which was beyond [*2]the statutorily prescribed 30-day period (see 11 NYCRR 65.15 [g] [3]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Although the 30-day statutory period may be extended by a verification request (11 NYCRR 65.15 [d] [1], [2]), there was no proof submitted in admissible form that the alleged verification requests were mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists 2004]).

Despite the untimely denial of plaintiff’s claim, defendant is not precluded from asserting the defense that the alleged injuries were not causally related to the accident, which was the sole ground for defendant’s denial of no-fault benefits (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The affidavit of defendant’s claims representative, however, was insufficient 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 at 199). Moreover, the unsworn “Automotive Engineering Report,” attached thereto, did not constitute competent proof in admissible form (see Dotzel v Allstate Ins. Co., 2003 NY Slip Op 50853[U] [App Term, 9th & 10th Jud Dists 2003]), and defendant failed to proffer {**6 Misc 3d at 64}an acceptable excuse for failure to tender such 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]). Accordingly, since defendant failed to raise any triable issue of fact, plaintiff’s motion for summary judgment was properly granted.

Golia, J., dissents and votes to reverse the order and deny plaintiff’s motion for summary judgment in the following memorandum: Plaintiff (health care provider) moved for summary judgment and made out a prima facie showing of entitlement thereto upon alleging that it filed a claim for payment of no-fault benefits which was received by the carrier on October 5, 2001, and that a denial was not issued until December 19, 2001. Since the denial was well past the 30 days, the plaintiff asserts that any denial is ineffective pursuant to 11 NYCRR 65.15 (g) (3) (see also Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Plaintiff further asserted that although the 30-day period may be extended by a request for verification pursuant to 11 NYCRR 65.15 (d) (1) and (2), no such requests were made in the case at bar.

Although I am not in full agreement with those assertions, my dissent is grounded firmly in the findings of the Court of Appeals in the matter of Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) and followed by Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]).

The Court of Appeals clearly and unequivocally stated that if the alleged injuries were not causally related to the accident, the strict 30-day time limit (11 NYCRR 65.15 [g] [3]) for filing a denial would not apply. That Court wisely reasoned that the no-fault regulations could not be used to mandate that an automobile insurance policy be used to pay for alleged injuries that did not arise from the automobile accident claimed.

It is evident to me that the defendant’s denial of the claim sufficiently raised that issue. Furthermore, contrary to the holding of the majority, I find that the papers submitted in opposition to the plaintiff’s motion for summary judgment were also sufficient to raise that issue of fact.

The instant case involves a minor accident between a large chartered bus in which the respondent was a passenger and a 1999 Ford Taurus, a mid-sized passenger automobile. Indeed the only damage to the bus was a one-inch crack in the front bumper which did not even warrant any repair. The passenger car suffered a shattered rear windshield and a buckled rear tailgate. {**6 Misc 3d at 65}There has been no reported injuries of any kind from the occupants of the passenger car. The tour guide on the bus stated that all the occupants of the bus fully participated in the recreational events of the day. Indeed the police report did not note any injuries by any occupants of either the bus or the passenger car. The insurance carrier engaged the services of an automotive engineering expert who investigated the accident and determined that the plaintiff could not have suffered the injuries complained of.

Under all the facts and circumstances, it is abundantly clear that there is an issue of fact as to whether the injuries alleged resulted from the accident claimed.

In support of their opinion the majority relies solely on the fact that the “Automotive Engineering Report” was unsworn and therefore did not constitute competent proof in admissible form. The majority argues that the failure to submit a sworn affidavit or a valid reason for failing to do so is fatal to this position.

However, I find that such unsworn report is sufficient for the purpose of raising a triable issue of fact. There is a long line of cases from the Court of Appeals and lower courts that [*3]support the proposition, that for the purpose of defending a summary judgment motion, statements that may be subject to objections should not be precluded from consideration by the court if they are otherwise relevant and competent (see Phillips v Kantor & Co., 31 NY2d 307 [1972]; Narvaez v NYRAC, 290 AD2d 400 [2002]; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453 [2000]; Eitner v 119 W. 71st St. Owners Corp., 253 AD2d 641 [1998]; Guzman v Strab Constr. Corp., 228 AD2d 645 [1996]).

This is especially true, as it is here, where the witness who prepared the unsworn “Automotive Engineering Report” is presumably available to testify (Levbarg v City of New York, 282 AD2d 239, 241 [2001]).

Accordingly, I would reverse the holding of the lower court and would deny the plaintiff’s motion for summary judgment.

Pesce, P.J., and Rios, J., concur; Golia, J., dissents in a separate memorandum.