Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 52266(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, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 16, 2005. 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 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 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, by annexing to its moving papers defendant’s claim denial form, the contents of which corresponded to the appended claim forms, plaintiff established that it sent and that defendant received the claims in question (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op [*2]50507[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s prima facie entitlement to summary judgment as to the aforementioned claims was established, and the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the instant case, defendant’s denial of claim form indicated that defendant did not deny the claims within 30 days of their receipt. Although defendant claimed to have mailed timely verification requests, which would extend the 30-day claim determination period (11 NYCRR 65-3.5, 65-3.8 [a] [1]), it failed to submit adequate proof of having done so. The affidavit of defendant’s special investigator stated that the policy in effect at the time of the accident required an eligible injured person to submit to an examination under oath (EUO) if reasonably requested, and referred to documents to show that EUOs were in fact requested of plaintiff’s assignor. There were, however, no evidentiary submissions to establish that said requests were mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Thus, defendant’s time to deny the claim was not tolled, the denial was untimely and defendant was precluded from raising most defenses as a result of its untimely denial (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 defendant 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 does 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.; Valley Psychological, P.C. v Liberty Mut. Ins. Co., 30 AD3d 718 [2006]; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [2005]). Accordingly, plaintiff is 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., Weston Patterson and Belen, JJ., concur.
Decision Date: November 17, 2006