[*1] Decided on July 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-1194 K C. NO.2005-1194 K C

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered April 21, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified affirmed without costs.

In this action to recover first-party no-fault benefits for health care services provided its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and 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]). The burden then shifted to defendant to establish a triable issue of material fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment dismissing the complaint, defendant alleged that it timely mailed plaintiff an NF-10 claim denial form, which stated, as the sole defense to the claim, that the medical services provided were not medically necessary, as demonstrated by an “attached” peer review report (see generally Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra). The defendant proved that it mailed the denial form via an affidavit [*2]from a person with personal knowledge of the facts, alleging the form’s actual mailing (Fair Price Med. Supply Corp. v Travelers Indem. Co., 9 Misc 3d 76, 77 [App Term, 2d & 11th Jud Dists 2005]; see Delta Diagnostic Radiology, P.C. v GEICO Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50137[U] [App Term, 9th & 10th Jud Dists] [affidavit must allege either personal knowledge of the denial form’s mailing or a description of “the standard operating procedures (defendant) uses to ensure that its denial was mailed”], citing Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; see also New York and Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558). Defendant also proved that the peer review report was annexed to its denial form. As the report asserted sufficient facts and a medical rationale based thereon to establish the defense of lack of medical necessity, a trial is required on the issue (e.g. A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]). Accordingly, both plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment should have been denied.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
PSYCHOLOGICAL PRACTICE, P.C.
A/A/O ALLEN SHANNON,

Respondent,

-against-
KEMPER AUTO & HOME INSURANCE COMPANY,

Appellant.

Golia, J., concurs with the result only, 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.
Decision Date: July 3, 2006

[*1] Decided on July 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-1172 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County

(Eileen Nadelson, J.), entered March 15, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff moved for summary judgment. In support of its motion for summary judgment on three claims, the plaintiff submitted the three NF-3 forms. Number 16 of each form states:

“If treating provider is different that [sic] billing provider complete the following.”

On two of the forms “the following” was not completed. On the third form, Number 16 identifies Dixu Gd Gao as the treating provider, and under the “business relationship” category, the box “Independent Contractor” is checked. Where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the health care services [*2]rendered within the meaning of 11 NYCRR 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the insurer (Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d &11th Jud Dists 2005]; A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d & 11th Jud Dists]; see also Antell v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]). In light of [*3]
the factual issues raised by plaintiff’s submissions, the plaintiff’s motion for summary judgment was properly denied. In view of the foregoing, we reach no other issues.

Weston Patterson, J.P., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, 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.

Decision Date: July 3, 2006

[*1] Decided on July 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2005-946 N C.

Appeal from an order of the District Court of Nassau County, First District (Alfred D. Cooper, Sr., J.), entered April 1, 2005. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover overdue first-party no-fault benefits for a CAT scan plaintiff provided to its assignor, the court below denied plaintiff’s cross motion for summary judgment on the ground that defendant’s affirmed peer review report established a triable issue of the procedure’s medical necessity. Plaintiff appeals from that determination and we affirm.

The peer reviewer’s conclusion, that the available medical documentation, which included several examination and test reports, did not establish the medical necessity of a CAT scan of an area which another provider had already examined, inter alia, via an MRI, set forth “a factual basis and medical rationale” (Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95, 97 [App Term, 9th & 10th Jud Dists 2004]) sufficient to raise a triable issue of the procedure’s medical necessity. We note that the reviewer’s mere reference to unavailable reports does not require the inference that the reviewer considered the information in his possession insufficient to permit a medical necessity determination and that recourse to the verification process was necessary to amplify the record (see Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A],
2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]; cf. All County Open MRI & Diagn. Radiology P.C. v Travelers Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50318[U] [App Term, 9th & 10th Jud Dists]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: July 3, 2006

[*1] Decided on July 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-587 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Donald S. Kurtz, J.), entered on January 19, 2005. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses 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]). The deficiencies in plaintiff’s moving papers concerning proof of its submission of the claims were cured by the defendant’s denial of claim forms attached to plaintiff’s moving papers, which adequately established that plaintiff sent, and that defendant received, the claims (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]; Ultra Diagnostics Imaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App [*2]Term, 2d & 11th Jud Dists 2005]).

Defendant’s denials of plaintiff’s claims were not timely made within the 30-day statutory period within which it was required to pay or deny the claims (11 NYCRR 65-3.8 [c]). An insurer’s timely verification requests and compliance with the follow-up verification requirements may extend the 30-day period (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]). Since defendant failed to establish by proof of proper mailing that it ever requested that plaintiff’s assignor sign and return the transcript of his examination under oath (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), we need not reach the ultimate question of whether such request, if properly made, would have the effect of tolling the 30-day claim determination period. Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defense of a fraudulent claim (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]). Defendant also denied the claims on the ground of fraud and/or misrepresentation. However, the record indicates that defendant’s claim of fraud is, in essence, premised on a fraudulent claim which, whether based on fraudulent billing, excessive medical treatment or otherwise, are defenses subject to preclusion (see Central Gen. Hosp., 90 NY2d at 199; Presbyterian Hosp. in City of N.Y. v Maryland Cas, Co., 90 NY2d at 285; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29, supra; Fair Price Med. Supply Co. v Travelers Indem. Co., 9 Misc 3d 76 [App Term, 2d & 11th Jud Dists 2005]; Melbourne Med., P. C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]; cf. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

We note that defendant correctly argues that where medical services are rendered by an independent contractor, the billing provider may not maintain an assigned first-party no-fault action, since it is not a “provider” within the meaning of the
insurance regulations, and hence no-fault benefits are not assignable to it (Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). Further, such defense is nonwaivable and not subject to the preclusion rule (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, supra). In opposition to plaintiff’s motion for summary judgment, defendant has failed to offer proof in admissible form in support of the nonwaivable defense that the services were provided by an independent contractor, and that plaintiff therefore could not maintain the instant action.

Defendant’s argument that plaintiff has failed to show entitlement to recover no-fault benefits because the assignment of benefits form is not authenticated is without merit since the lack of authentication does not constitute a cognizable defect (see A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). In any event, defendant’s failure to seek verification of the assignment, or to allege such deficiency in the assignment in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id.; New York Hosp. Med. Ctr. of
Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in
City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, summary judgment was properly granted in favor of plaintiff.

Weston Patterson, J.P., 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.

I further wish to note that the objection to the claim is not one that sounds in overbilling but relates to billing for services that may never have been provided. Paying for services that were never provided is not in my estimation, fraudulently overbilling and should not be subject to preclusion.
Decision Date: July 3, 2006

[*1] Decided on June 30, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-1278 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered August 2, 2005. The order granted defendant’s motion to dismiss the complaint to the extent of compelling plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant denied the claim on the ground, inter alia, that the injuries were not caused by the accident. Defendant moved to dismiss plaintiff’s complaint based on its failure to respond to defendant’s discovery demands and failure to appear for an examination before trial or, in the alternative, an order compelling plaintiff to respond to its discovery demands and to appear for an examination before trial. The plaintiff’s failure to challenge defendant’s notice of discovery within the time prescribed “foreclosed inquiry into the propriety of the information sought except with regard to requests that are privileged under CPLR 3101, or as to requests which are palpably improper” (Fausto v City of New York, 17 AD3d 520, 522 [2005]; see Marino v County of Nassau, 16 AD3d 628 [2005]; Garcia v Jomber Realty, 264 AD2d 809 [1999]). Consequently, the order, which compelled plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial, is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: June 30, 2006

Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co.

2006 NY Slip Op 26276 [12 Misc 3d 114]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 06, 2006

[*1]

Vista Surgical Supplies, Inc., as Assignee of Aida Gonzalez, Appellant, v Liberty Mutual Insurance Co., Respondent.

Supreme Court, Appellate Term, Second Department, June 30, 2006

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Troy & Troy, Lake Ronkonkoma (Patrick J. Morganelli of counsel), for respondent.

{**12 Misc 3d at 86} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In order to establish a prima facie entitlement to summary judgment, plaintiff was required to prove that it submitted the subject claims, setting forth the fact and the amounts of the losses 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 2003]). In support of its motion for summary judgment, plaintiff annexed an affidavit of one of its corporate officers. In said affidavit, plaintiff’s corporate officer did not specifically state that he mailed the claims, but rather, stated that proof that he mailed the claims was annexed. However, since no such proof was annexed, plaintiff did not establish that he actually mailed the claims. In addition, there was no admission by defendant acknowledging the receipt of the claims. While plaintiff subsequently submitted a document entitled “Submission by Stipulation of the Parties and Court,” which stated that the parties agreed that the letters annexed thereto from defendant established defendant’s receipt of the claims, said document is not enforceable as it was not signed by the defendant (see CPLR 2104). Since plaintiff failed to establish by competent proof that the claim forms were mailed to defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), plaintiff’s motion for summary judgment was properly denied. [*2]

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

[*1] Decided on June 29, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
2005-1340 N C.

Appeal from an order of the District Court of Nassau County, Third District (Howard S. Miller, J.), dated May 9, 2005. The order denied plaintiff’s motion for summary judgment with leave to renew upon completion of discovery and granted defendant’s cross motion to compel discovery.

Appeal from so much of the order as granted defendant’s cross motion to compel discovery dismissed.

Order, insofar as reviewed, modified by providing that plaintiff’s motion for summary judgment is denied and by striking the provision thereof granting plaintiff leave to renew said motion; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider failed to establish a prima facie entitlement to summary judgment since it did not adequately establish that it submitted its claim forms to defendant (see A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Proof of proper mailing requires evidence of “actual mailing or . . . a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]), neither of which was demonstrated in the instant case (see generally New York & Presbyt. Hosp. v Allstate Ins. [*2]Co., ___ AD3d ___, 2006 NY Slip Op 03558). Plaintiff’s submissions in support of its motion, consisting of an affirmation of counsel without personal knowledge that the claim forms were actually mailed to defendant (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]), accompanied by an affidavit of a corporate officer of plaintiff provider, which made no specific reference to the appended claim forms or to proof of mailing, but which merely stated that his file included the original proof of mailing, were insufficient to establish submission of the claim forms (see Dr. Patil, M.D. v Countrywide Ins. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50306[U] [App Term, 9th & 10th Jud Dists]). Moreover, plaintiff’s attempt to demonstrate defendant’s receipt of the claims in question by attaching to its reply affirmation a denial of claim form indicating that a claim was received by defendant is of no relevance since the denial form is not specifically referable to any of the instant claims. Under the circumstances, plaintiff’s motion for summary judgment should have been denied on the merits.

With respect to that branch of the order which granted defendant’s cross motion to compel discovery, since plaintiff failed to submit written opposition to the cross motion, said branch of the order is deemed to have been granted on default and the appeal therefrom by plaintiff, the defaulting party, must be dismissed (CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]).

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 29, 2006

[*1] Decided on June 29, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: DAVIS, J.P., GANGEL-JACOB, SCHOENFELD, JJ
570140/06.

Defendant appeals from an order of the Civil Court, Bronx County (Francis M. Alessandro, J.), entered January 17, 2006, which granted plaintiff’s motion for summary judgment.

PER CURIAM:

Order (Francis M. Alessandro, J.), entered January 17, 2006), reversed, with $10 costs, motion denied, and matter remanded to Civil Court for further proceedings.

An insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested (see 11 NYCRR 65.15[g][1][I]; 2[iii]; Elite Chiropractic Servs., PC v Travelers Ins. Co., 9 Misc 3d 137[A], 2005 NY Slip Op. 51735[U] [2005]). While plaintiff states that it responded to defendant’s verification request, no presumption of mailing was created because the affidavit of plaintiff’s representative neither stated that she actually mailed the verifications to defendant nor described plaintiff’s mailing office practice and procedures. Since plaintiff’s submission was insufficient to raise a presumption of receipt (see New York and Presbyterian Hospital v Allstate Ins. Co., AD3d [2006], 2006 NY Slip Op. 03558), its motion for summary judgment should have been denied.

This constitutes the decision and order of the court.
Decision Date: June 29, 2006

[*1] Decided on June 28, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT:: ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
2005-1664 N C.

Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), dated September 28, 2005. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Order reversed without costs, defendant’s motion for summary judgment denied, plaintiff’s cross motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees. [*2]

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignors. Thereafter, defendant moved for summary judgment dismissing the complaint alleging that the accident was fraudulent. Plaintiff opposed the motion and cross-moved for summary judgment. By order dated September 28, 2005, the court below granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

In the court below and on appeal, defendant argues that plaintiff had no standing to bring the instant action since the assignment of benefits forms were defective. However, since defendant did not timely object to the completeness of the forms or seek verification of the assignments, it waived any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

It is uncontroverted that defendant untimely denied the claims. However, it is well settled that a defendant is not precluded from asserting the defense that a collision was in furtherance of an insurance fraud scheme, despite its untimely denial (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). Contrary to the determination of the court below, we find that the affidavit submitted by defendant’s investigator was insufficient to demonstrate that defendant’s denial 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]). Consequently, defendant failed to demonstrate the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order of the court below is reversed, defendant’s motion for summary judgment is denied, plaintiff’s cross motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 28, 2006

[*1] Decided on June 28, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-1218 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered April 1, 2005. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint for plaintiff’s failure to prosecute the action and plaintiff cross-moved for summary judgment. By order entered April 1, 2005, the court denied both motions. On appeal, plaintiff contends that it is entitled to summary judgment since defendant’s denial of plaintiff’s claim was untimely and, thus, defendant is precluded from raising its defense of lack of medical necessity.

Contrary to plaintiff’s argument, defendant’s denial of plaintiff’s claim was not untimely. Plaintiff asserted that it first submitted its claim to defendant on May 15, 2002 and, after receiving no response from defendant regarding same, it re-submitted its claim on August 3, 2002. However, the affidavit of plaintiff’s owner failed to establish that plaintiff mailed its claim to defendant on May 15, 2002 by either proof of actual mailing or proof of plaintiff’s standard office practice or procedure which was designed to ensure that items were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., ___ AD3d ___, 2006 NY Slip Op 03558 [2d Dept, May 2, 2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d [*2]679 [2001]). On its denial of claim form, defendant acknowledged receipt of plaintiff’s claim form on August 7, 2002 (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]) and the affidavit of defendant’s claims representative proved that defendant denied plaintiff’s claim on September 3, 2002 on the ground of lack of medical necessity, based on a peer review report annexed to its denial of claim form. Since plaintiff failed to establish that the denial of claim form was untimely, defendant is not precluded from raising its defense
of lack of medical necessity. Said defense raised a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) and, thus, the lower court properly denied plaintiff’s cross motion for summary judgment.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: June 28, 2006