Bell Air Med. Supply LLC v State Farm Ins. Claim Off. (2006 NY Slip Op 52218(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 (Manuel J. Mendez, J.), entered January 3, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

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 statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits is 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 the instant case, plaintiff’s moving papers were insufficient to establish the mailing to defendant of the appended claim forms in the sums of $738 and $861.50. However, said deficiency was cured with regard to the $738 claim by defendant’s acknowledgment of receipt of said claim in its denial of claim form which was annexed to plaintiff’s papers. This adequately established that plaintiff sent, and that defendant received, said claim (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, [*2]plaintiff established its prima facie entitlement to summary judgment as to the $738 claim and the burden shifted to defendant to demonstrate the existence of a triable issue of fact with respect thereto (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The denial of claim form relating to plaintiff’s $738 claim was dated “8/10/01” and indicated that said claim was received by defendant on “1/12/01 and 3/19/01.” Since 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]) and failed to establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65.15 [d] [1], [2], now 11 NYCRR 65-3.5 [a], [b]), 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 its 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 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]). Since plaintiff failed to establish a prima facie case as to its $861.50 claim and, in any event, defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage, the lower court properly denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

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 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: October 27, 2006