[*1]

Supreme Court, Appellate Term, Second Department, December 1, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Samuel K. Rubin, Bethpage, for respondent.

{**6 Misc 3d at 57} OPINION OF THE COURT

Memorandum.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

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 the statutory claim form 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 2003]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]).

In opposition to plaintiff’s motion, defendant failed to raise triable issues of fact. Defendant denied plaintiff’s claim on the ground that plaintiff’s assignor failed to appear for examinations under oath (EUOs). The revised insurance regulations, which took effect on April [*2]5, 2002, include EUOs in the mandatory personal injury protection endorsement, providing that an eligible injured person submit to EUOs “as may reasonably be required” (11 NYCRR 65-1.1 [d]). It is uncontroverted that plaintiff’s claim was submitted subsequent to April 5, 2002. However, “[c]onsistent with the Insurance Department’s interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect” (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], *2 [App Term, 9th & 10th Jud Dists 2004]). In the instant case, defendant’s submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs (see S & M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists 2004]). Accordingly, plaintiff’s failure to appear for EUOs cannot constitute a basis for denial of the claim.{**6 Misc 3d at 58}

Therefore, plaintiff’s motion for summary judgment should have been granted, and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court, Bronx County, entered on or about January 13, 2004 (Irving Rosen, J.) which denied its motion for summary judgment.

PER CURIAM:

Order entered on or about January 13, 2004 (Irving Rosen, J.) reversed, with $10 costs, plaintiff’s motion for summary judgment is granted and the matter is remanded to the Civil Court for (1) the assessment of reasonable attorney’s fees pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder, and (2) the entry of a judgment in favor of plaintiff and against defendant in the principal sum of $12,836.22, plus appropriate interest and attorney’s fees (see St. Clare’s Hospital v State Farm Mutual Automobile Insurance Co., 215 AD2d 641 [1995]).

Plaintiff seeks to recover first party no-fault insurance benefits for medical services rendered to its assignors who were injured in an automobile accident. Plaintiff made a prima facie showing that defendant failed to pay or deny the claims within 30 days after defendant received plaintiff’s demands (see Insurance Law § 5106 [a] and 11 NYCRR [*2]65.15[g][3]; Presbyterian Hospital in the City of New York v Maryland Casualty Company, 90 NY2d 274, 278 [1997]) and that payment of plaintiff’s claims was overdue. The sworn statement of plaintiff’s billing manager that the claim forms were mailed to defendant on the date each was signed ^[FN1] is uncontradicted on this record. Accordingly, plaintiff’s unopposed motion for summary judgment should have been granted (see CPLR 3212[b]).

This constitutes the decision and order of the court.
I concur.
I concur.
I concur.
Decision Date: November 24, 2004

Footnotes

Footnote 1: The record contains forms signed October 2, 2002, October 8, 2002, October 16, 2002 and November 6, 2002 for the claims with respect to Julio Cruz and September 30, 2002, October 8, 2002, October 29, 2002, November 6, 2002 and November 26, 2002 for the claims with respect to Steven Rosa.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the District Court, Nassau County (S. Pardes, J.), entered November 17, 2003, as denied their motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs health care providers established a prima facie entitlement to summary judgment by proof that they submitted the statutory claim form, setting forth the fact and the amount of the loss sustained (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th & 10th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day statutory period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in [*2]furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient 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]). Accordingly, since defendant demonstrated 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]), plaintiffs’ motion for summary judgment was properly denied.

Plaintiffs’ remaining contentions lack merit.
Decision Date: November 19, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (S. Pardes, J.), entered on November 3, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.

In this action to recover 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 the statutory claim form, setting forth the fact and the amount of the loss sustained (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th & 10th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day claim determination period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of plaintiff’s claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an [*2]insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated 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]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: November 19, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by petitioner from an order of the Civil Court, Queens County (A. Agate, J.), entered August 4, 2003, denying its petition to vacate an arbitrator’s award.

Order unanimously reversed without costs, petition granted, arbitrator’s award vacated and matter remanded for arbitration.

Pursuant to the mandatory arbitration provisions of Insurance Law § 5105 et seq., petitioner State Farm Mutual Automobile Insurance Company (State Farm) filed a demand for arbitration in April 2002 seeking reimbursement of no-fault payments it made to its subrogor commencing in May 1999. Arbitration Forums, Inc. denied the claim on the ground that the three year statute of limitations had expired. State Farm commenced a special proceeding to vacate the arbitrator’s award. The court below denied the petition, finding that petitioner “did not specify the dates of the payments to the claimant or include any documentary proof. Rather, [petitioner] attached its demand for arbitration and the decision, neither of which indicate the dates of the initial payments.”

Contrary to the determination of the court below, we find that petitioner submitted documentary proof as to the payments it made to its subrogor by its submission of the affidavit of its claims representative, as well as the other documents included in Exhibit D which was attached to its petition (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1968]). We [*2]further find that the arbitrator’s award dismissing the claim as barred by the statute of limitations was not based on the evidence, and it was arbitrary and capricious for the arbitrator to dismiss the claim since petitioner timely made its demand for arbitration within three years of its first no-fault payment (see CPLR 214 [2]; Matter of Motor Vehicle Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 219-220 [1996]; Matter of Budget Rent-A-Car [State Ins. Fund], 237 AD2d 153 [1997]; Empire Ins. Co. v Eagle Ins. Co., 4 Misc 3d 25 [2004] [App Term, 2d & 11th Jud Dists]; Allcity Ins. Co. v Eagle Ins. Co., 1 Misc 3d 41 [2003] [App Term, 2d & 11th Jud Dists]; Allcity Ins. Co. v GEICO, 2003 NY Slip Op 50898 [U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the petition seeking to vacate the arbitrator’s award is granted and the matter is remanded for arbitration.

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).
Decision Date: October 27, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (J. Sullivan, J.), entered on December 2, 2002, which denied its motion for summary judgment.

Order unanimously affirmed without costs.
In this action to recover assigned no-fault benefits, defendant’s submissions in opposition to plaintiff’s motion for summary judgment consisting of, inter alia, the affidavit of its special investigator supported by examinations under oath taken of [*2]
plaintiff’s assignor and other persons involved in the accident, are sufficient to raise a triable issue of fact as to whether the collision was part of a fraudulent insurance scheme. Accordingly, plaintiff’s motion for summary judgment was properly denied.
Decision Date: October 21, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (H. Miller, J.), entered on September 8, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.

Plaintiff, a health care provider, established its prima facie entitlement to summary judgment on its claim for first-party no-fault benefits for services rendered to its assignor by evidence of submission of a complete proof of claim, its receipt
by defendant, and defendant’s failure to pay or deny the claim within the prescribed 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th & 10th Jud Dists]). Defendant’s requests for examinations under oath did not toll the 30-day period, since the insurance [*2]regulations in effect at the time plaintiff’s claims were submitted did not contain a provision requiring a claimant to appear for an examination under oath (see A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]).

While defendant is thus precluded from asserting most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), it
is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient 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]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.), plaintiff’s motion for summary judgment was properly denied.
Decision Date: October 20, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (S. Pardes, J.), entered October 10, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical equipment provided its assignors, plaintiff established its entitlement to summary judgment prima
facie by proof it submitted properly executed claim forms setting forth the fact and amount of the loss sustained (A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8, 9 [App Term, 9th & 10th Jud Dists 2003]; Damadian MRI in Garden City v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51702 [U] [App Term, 9th & 10th Jud Dists]). As defendant concededly failed to pay or deny the claims within 30 days of receipt (Insurance Law § 5106 [a];11 NYCRR 65.15 [g] [3]), defendant cannot avoid the consequence of the untimely denials (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), namely the preclusion of its defense based on the assignors’ failures to attend examinations under oath (EUOs). In any event, defendant failed to prove that the EUO requests were timely (11 NYCRR 65.15 [d] [1]), or that when [*2]plaintiff filed the claims the insurance regulations provided for such a procedure (A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d at 10; see also Ocean Diagnostic Imaging v Geico Ins., ___ Misc 3d ___ [A], [2004 NY Slip Op 50511 [U] [App Term, 9th & 10th Jud Dists]). However, the preclusion rule is inapplicable to a claim that the underlying traffic incident was a deliberate event staged in furtherance of a scheme to defraud (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]) which claim, if substantiated, constitutes a complete defense to the action (Matter of Government Empls. Ins. Co. v Shaulskaya, 302 AD2d 522 [2003]). In our view, defendant’s [*3]
submissions sufficed to demonstrate a “founded belief that the alleged injury d[id] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199).
Decision Date: October 20, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County

(D. Silber, J.), entered on September 19, 2003, as denied their cross motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

Plaintiffs health care providers established their prima facie entitlement to summary judgment for assigned no-fault benefits by the submission of evidentiary proof that the statutory claims forms were mailed to defendant and that defendant failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; 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]). Moreover, defendant’s requests for examinations under oath did not toll the 30-day period in the [*2]absence of provisions in the applicable insurance regulations requiring a claimant to submit to examinations under oath (see Melbourne Med., P.C. v Utica Mut. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24221 [U] [App Term, 2d & 11th Jud Dists]; S & M Supply v Nationwide Mut. Ins. Co., 3 Misc 3d 138 [A], 2004 NY Slip Op 50557 [U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient 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]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.), plaintiffs’ motion for summary judgment was properly denied.
Decision Date: September 29, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered on August 18, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff health care provider made out a prima facie showing of entitlement to recover no-fault benefits for services rendered to its assignors by submission of proof
that it had mailed the statutory claim forms, that defendant had received them, and that defendant did not pay or deny the claims within the 30-day statutory period (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Nyack Hosp. v State Farm Mut. Auto Ins. Co., 8 AD3d 250 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th &10th Jud Dists]).

Despite its untimely denial of benefits, defendant is not precluded from asserting the [*2]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, 201 [1997]). However, the affidavit of defendant’s attorney who had no personal knowledge of the facts, and who sets forth bare and conclusory allegations of fraud, constituted a submission in opposition to plaintiff’s motion which was insufficient to raise a triable issue of fact. Under these circumstances, the defendant’s submissions in opposition to plaintiff’s motion were insufficient to raise an issue of fact as to whether defendant’s denial of benefits was “premised on the fact or founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (id. at 199).

Accordingly, plaintiff’s motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: September 20, 2004