Star Med. Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 50129(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 (Eileen Nadelson, J.), entered October 29, 2004. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim, 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]). We find no merit to defendant’s contention that the failure of one of plaintiff’s assignors, Claire, to appear for an examination under oath (EUO) precludes summary judgment with respect to the claims submitted for treatment rendered to said assignor. The submissions of defendant’s claims representative and counsel failed to establish that they had personal knowledge that the letters requesting the EUO were mailed to Claire. Nor did said submissions create a presumption of mailing by setting forth the standard office practice or procedures used to ensure that such letters are properly addressed and mailed (see Amaze Med. Supply Inc. v State Farm Mut. Auto. Ins. Co., 8 Misc 3d 139[A], 2005 NY Slip Op 51315[U] [App Term, 2d & 11th Jud Dists]). Moreover, defendant failed to introduce evidence in admissible form establishing that the insurance policy it issued to its insured actually contained an endorsement entitling it to EUOs (see Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], [*2]2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]).

Although defendant issued an untimely denial of the claim relating to plaintiff’s other assignor, Charmant, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). However, defendant failed to establish that it possessed a “founded belief that [Charmant’s] 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]). Indeed, although defendant annexed Charmant’s EUO testimony, defendant may not rely upon its bare representation as to what another passenger in the car, Phillipe, stated during said passenger’s EUO, in an attempt to demonstrate the existence of an issue of fact (see Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

In light of the foregoing, the order should be affirmed because plaintiff was entitled to summary judgment upon both claims.

Rios and Belen, JJ., concur.

Golia, J.P., dissents in a separate memorandum.

Golia, J.P., dissents and votes to reverse the order and deny plaintiff’s motion for summary judgment in the following memorandum.

I am in agreement with the majority that an untimely denial does not preclude a defendant from asserting the defense that the claimed collision was in furtherance of a scheme to defraud.

However, I disagree with the majority when they insist that the holding of the Court of Appeals in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) requires that in order for a defendant to have a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199), the defendant must submit sworn statements establishing those findings. I submit that the Court of Appeals only requires that the defendant provide a sworn affidavit (affirmation) which establishes that the affiant has a belief which is “founded” upon information obtained by a reasonable investigation. The actual source materials uncovered by that investigation such as interviews, documents, examination under oath transcripts, etc., need not be submitted and certainly not in a form that would constitute sworn testimony. That, in my opinion, is what is going to be required at trial.

Accordingly, I dissent and vote to reverse and deny plaintiff’s motion for summary judgment.
Decision Date: February 01, 2006