Great Wall Acupuncture v Utica Mut. Ins. Co. (2007 NY Slip Op 50389(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 January 6, 2006, deemed an appeal from the judgment entered on January 30, 2006 (see Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the January 6, 2006 order which granted plaintiff’s motion for summary judgment, awarded plaintiff the total sum of $10,088.84.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed, claiming, inter alia, that plaintiff’s assignors failed to appear for scheduled independent medical examinations (IMEs), and that there was an issue of fact as to whether the alleged injuries were caused by an insured incident. The court below granted plaintiff’s motion, and a judgment was subsequently entered. On appeal, defendant reiterates the arguments which it made in the court below, i.e., that plaintiff’s assignors, by failing to appear for scheduled IMEs, violated a condition precedent to coverage under the policy, and that defendant had presented a triable issue of fact regarding fraud sufficient to defeat plaintiff’s motion.

The claims at issue were denied by defendant based upon plaintiff’s assignors’ failure to attend scheduled IMEs. Defendant, in opposition to plaintiff’s motion for summary judgment, submitted affidavits from a claims representative and an investigator from its Special Investigative Unit. Neither affiant, however, demonstrated personal knowledge of the mailing of defendant’s verification requests or described a standard office mailing procedure giving rise to a [*2]presumption of mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also Ocean Diagnostic Imaging P.C. v New York Central Mut. Fire Ins. Co., 9 Misc 3d 138[A], 2005 NY Slip Op 51772[U] [App Term, 2d & 11th Jud Dists]; cf. Amaze Med. Supply Inc. v General Assur. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50307[U] [App Term, 2d & 11th Jud Dists]). Thus, defendant failed to demonstrate by competent evidence that it mailed the IME requests, or any other documents which would have tolled the 30-day claim determination period (see Fair Price Med. Supply Corp. v General Assur. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50256[U] [App Term, 2d & 11th Jud Dists]). We further note that, in any event, defendant submitted no evidence from anyone with personal knowledge of the nonappearances (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).

While defendant also claimed that plaintiff’s assignors were engaged in fraudulent conduct by virtue of their having failed to attend scheduled IMEs as well as by having made “material misrepresentation[s]” in the presentation of the claims, its submissions were insufficient to establish a defense 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]). The investigatory reports upon which defendant’s investigator relied were unsworn, and the statements in the affidavit of defendant’s investigator were conclusory (see e.g. A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 12 Misc 3d 139[A], 2006 NY Slip Op 51334[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co.,10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]). In view of the foregoing, the judgment is affirmed.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs, in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not 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: March 2, 2007