A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2006 NY Slip Op 51334(U))

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 (Dolores L. Waltrous, J.), entered March 4, 2005. The order denied plaintiffs’ motion for summary judgment.

Appeal insofar as taken by plaintiff Square Synagogue Transportation Inc. dismissed.

Order, insofar as appealed from, reversed without costs, motion by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C. for summary judgment granted, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

This action to recover $7,762.98 in assigned first-party no-fault benefits arises from a July 19, 2002 motor vehicle accident which has resulted in two related appeals involving different assignors, which have already been decided by this court: A. B. Med. Servs. PLLC v Utica Mut. Ins. Co. (10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]) and Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (9 Misc 3d 138[A], 2005 NY Slip Op 51747[U] [App Term, 2d & 11th Jud Dists]).

In the instant case, plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C., all providers of health care services, established their prima facie entitlement to summary judgment by proof that they submitted statutory claim forms, setting forth the fact and amounts of the losses sustained, and that payment of no-fault benefits was [*2]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 create a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s December 4, 2002 claim denial was untimely as to all claims with the exception of plaintiff A.B. Medical Services PLLC’s claims for $67.60 and $33.70, and plaintiff Lvov Acupuncture P.C.’s claim for $85. Since the instant claim denial form lacked almost all of the information required for a properly executed form, including the critical information as to the amounts and dates of the claims, and the dates the claims were received, it was tantamount to no denial at all (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005] [“(A) denial of a claim form issued by (an insurer). . . even if timely, (is) fatally defective (if) it omit(s) numerous items of requested information and thus (is) incomplete”]; see also 11 NYCRR 65-3.4 [c] [11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004] [the insurer’s “denial of claim, while timely, was nonetheless fatally defective in that it failed to include a number of basic items called for in the prescribed form”]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613, 614 [1996] [preclusion sanction properly imposed where the insurer “fail(ed) to establish that it issued to the (claimant) a properly completed Denial of Claim Form within the (prescribed) 30-day period”]).

Defendant also failed to establish its defense that the incident was staged as part of a scheme to defraud. The proof offered in the instant case was virtually identical to that offered in the cases of A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (10 Misc 3d 50, supra) and Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (9 Misc 3d 138[A], 2005 NY Slip Op 51747[U], supra) and, as we noted in those cases, none of the proof offered was sufficient to establish said defense: the investigators’ reports and the statements of the operators of the vehicles involved in the accident were unsworn; defense counsel’s affirmation contained allegations which were not based upon personal knowledge; statements in the affidavit of defendant’s employee regarding “material misrepresentations” in the presentation of the claims were conclusory; and neither the affirmation nor the affidavit sufficed as a proper basis for the admission of the unsworn investigative reports.

Thus, notwithstanding the fact that defendant was not precluded from asserting the defense that the incident was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]), its submissions were insufficient 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 [1999]). Accordingly, defendant failed to demonstrate the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

We note that plaintiff Square Synagogue Transportation Inc. properly concedes in the brief that it is not entitled to the relief sought in the motion below and withdraws its claims (A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, supra).

Accordingly, the order, insofar as appealed from, is reversed, the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C. is granted, and the matter is remanded to the court below for a calculation of [*3]statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 6, 2006