East Acupuncture, P.C. v Electric Ins. Co. (2007 NY Slip Op 51281(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 (Alice Fisher Rubin, J.), dated August 10, 2005. The order denied defendant’s cross motion for summary judgment and granted plaintiff’s motions for summary judgment.

Order modified by providing that plaintiff’s motions for summary judgment are denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, in one motion, to recover upon its claims for treatment allegedly provided assignor Yekaterina Panina, and in a second motion, for summary judgment upon its claims for treatment provided assignors Iraida Fundator,
Nikita Vesensky, Arshavir Amatunyan, and Ruslan Babskiy. Defendant cross-moved for summary judgment. The court granted plaintiff’s motions and denied defendant’s cross motion. Defendant appeals.

Plaintiff’s proof of mailing of the claim forms concerning the services allegedly provided Panina, which defendant denied receiving, was insufficient (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). As a result, plaintiff’s motion for summary judgment upon those claims should have been denied. [*2]

As to the remaining claims, set forth in plaintiff’s second motion, defendant’s NF-10 claim denial forms and the affidavit of its claims examiner conceded receipt of the claims of assignors Fundator, Vesensky, Amatunyan and Babskiy, in the amounts, respectively, of $6,504.86, $964.50, $2,025.42, and $2,379.06, thereby curing the deficiencies in plaintiff’s proof of mailing with respect thereto (see Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co., 13 Misc 3d 127[A], 2006 NY Slip Op 51672[U] [App Term, 2d & 11th Jud Dists]; see also Oleg Barshay, DC., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). As there was no proof of the mailing of the remaining claims for which plaintiff sought summary judgment, and defendant did not admit the claims’ receipt, summary judgment in favor of plaintiff as to those sums should also have been denied.

With respect to the claims for which defendant conceded receipt, its denials were untimely since its requests for examinations under oath did not toll the 30-day claim determination period inasmuch as the insurance regulations applicable at the time lacked a provision entitling an insurer to an examination under oath (see Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50611[U] [App Term, 2d & 11th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]), thereby precluding most defenses, including “fraudulent claims” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997]). However, 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]). Defendant’s documentation included transcripts of the examinations under oath of several persons involved in the incident, which contain numerous statements that are implausible on their face with respect to matters material to the determination of whether the incident was staged to defraud defendant. Defendant also established that plaintiff’s billing agency and a medical provider sharing plaintiff’s professional address have entered guilty pleas to grand larceny and scheme to defraud in the first degree, which charges were based on the submission of false no-fault benefits claims. As a condition of the pleas, the billing agency and provider were required, respectively, to withdraw pending claims and to refrain from filing further claims for treatment alleged to have been provided in the period in which the instant treatment, and the claims based thereon, occurred. We note that some of plaintiff’s assignors had contact with the aforementioned provider for injuries alleged to have been caused by the incident underlying all of plaintiff’s claims. On the facts herein, we find that defendant established that its denials were based upon a “founded belief that the alleged injur[ies] d[id] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199) to the extent of warranting a trial as to coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]; A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists]).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK [*3]
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
EAST ACUPUNCTURE, P.C.
a/a/o IRAIDA FUNDATOR, NIKITA VESENSKY,
YEKATERINA PANINA, ARSHAVIR AMATUNYAN
and RUSLAN BABSKIY,

Respondent,

-against-

ELECTRIC INSURANCE CO.,
Appellant.

Golia, J.P., concurs 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.