VA Acutherapy Acupuncture, P.C. v State Farm Ins. Co. (2007 NY Slip Op 51217(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 December 3, 2004. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment denied.

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 a statutory claim form, setting forth the fact and the amount of the loss sustained,
and that payment of no-fault benefits is overdue (see e.g. 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, the denial of claim form (NF-10) annexed to plaintiff’s moving papers was sufficient to establish that plaintiff’s claims were submitted to and received by defendant (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). To the extent defendant claims that plaintiff failed to make a prima facie showing that plaintiff’s claims were overdue because the NF-10 issued by defendant and annexed to plaintiff’s moving papers indicated that plaintiff’s claims were denied 10 days after defendant received the claims, such an argument lacks merit (see Insurance Law 5106 [a]). [*2]

In opposition to plaintiff’s motion seeking summary judgment, defendant argued that plaintiff was not entitled to summary judgment because the collision was in furtherance of an insurance fraud scheme. We find that the affidavit of defendant’s investigator was sufficient to demonstrate that the defense was 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]). Since defendant raised a triable issue of fact as to whether there was a lack of coverage, plaintiff was not entitled to summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

In addition, defendant also asserted that plaintiff was not entitled to summary judgment since there was an issue of fact as to whether plaintiff was ineligible for reimbursement of no-fault benefits because plaintiff was alleged to be a fraudulently incorporated medical provider. It is well settled that fraudulently incorporated medical corporations are not entitled to reimbursement of no-fault benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d & 11th Jud Dists 2006]). In light of the foregoing, defendant’s opposition papers were sufficient to raise an issue of fact as to whether plaintiff was entitled to reimbursement of no-fault benefits (see Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2007 NY Slip Op 27135 [App Term, 2d & 11th Jud Dists]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]).

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

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
VA ACUTHERAPY ACUPUNCTURE, P.C.
a/a/o ANTONIO ARAVJO,

Respondent, [*3]

-against-
STATE FARM INS. CO.,

Appellant.

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: June 15, 2007