[*1]

Supreme Court, Appellate Term, Second Department, September 20, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Eric H. West, Long Island City, for respondent.

{**5 Misc 3d at 56} OPINION OF THE COURT

Memorandum.

Order unanimously affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, plaintiff moved for summary judgment in the amount of $980, which motion was denied by order entered September 10, 2003.

Contrary to the determination of the court below, plaintiff’s billing manager did not have to allege in his supporting affidavit that he had personal knowledge that the equipment was furnished to plaintiff’s assignor. Said affidavit set forth the billing manager’s duties so as to support the conclusion that the attached exhibits were sufficiently accurate and trustworthy to merit their admission into evidence pursuant to the business record exception to the hearsay rule (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]), and said exhibits established that the supplies were furnished to the assignor.

A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by showing that it submitted a properly completed claim form to defendant for $980 (see Insurance Law § 5106 [a]; 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], [*2]2003 NY Slip Op {**5 Misc 3d at 57}51700[U] [App Term, 9th & 10th Jud Dists 2003]). It is uncontroverted that defendant had until July 17, 2003 to pay or deny plaintiff’s claim. The plaintiff’s billing manager asserted that the defendant’s denial was untimely and he submitted a photocopy of an envelope, postmarked August 29, 2003, which allegedly contained the denial form. Defendant, however, submitted the affidavit of its claims adjuster who attested to the routine procedure and practice of her office, in the regular course of its business, which indicates that the denial had been duly addressed and mailed to plaintiff on July 17, 2003. In view of the foregoing, we find that the court below properly determined that a triable issue of fact existed (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

McCabe, P.J., Covello and Tanenbaum, JJ., concur.

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 August 18, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.
Plaintiff commenced this action to recover $2,637.07 in first-party no-fault benefits for medical services it rendered to its assignor pursuant to Insurance Law §
5101 et seq. Thereafter, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Both motions were denied by order entered August 18, 2003.

Contrary to the determination of the court below, the affidavit of plaintiff’s billing manager need not have stated that he had personal knowledge that the services were rendered to the assignor. Said affidavit need only have established his duties as the billing manager sufficient to support the inference that the attached exhibits were sufficiently accurate and trustworthy to merit their admission into evidence pursuant to the business record exception of the hearsay rule (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]). The affidavit herein was clearly adequate and laid a proper foundation for the court to consider the exhibits attached thereto pursuant to CPLR 4518 (a), and said exhibits established that the services were rendered to the assignor.

A review of the record indicates that plaintiff established its prima facie entitlement [*2]to summary judgment by showing that it submitted a properly completed proof of claim and the amount of the loss (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701 [U] [App Term, 2d & 11th Jud Dists]). Defendant, however, failed to deny the claim within the statutory 30-day claim determination period (11 NYCRR 65.15 [g] [3]), and its requests for examinations under oath did not toll the 30-day period inasmuch as the insurance regulation in effect at the time plaintiff submitted its claim did not contain a provision requiring a claimant to appear for an examination under oath (see A.B. Med. Servs. PLLC v Eagle Ins. Co., 3 Misc 3d 8 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392 [U] [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). We note that the cases of Han-Ki Lee v American Transit Ins. Co. (304 AD2d 713 [2003]) and Galante v State Farm Ins. Co. (249 AD2d 506 [1998]) are distinguishable on their facts.

An untimely denial, however, did not preclude defendant from asserting the defense that the collision was a staged event in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The investigator’s affidavit set forth sufficient facts to demonstrate that defendant
possessed 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]).
As a result, because 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 (see Ocean Diagnostic Imaging, P.C. v State Farm Mut. Auto. Ins. Co., (No. 2003-1289 NC, decided herewith and A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., (No. 2003-799 NC, decided herewith).
Decision Date: September 17, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Nassau County (A. Cooper, Sr., J.), dated March 5, 2003, denying its cross motion for summary judgment and granting plaintiff’s motion for summary judgment.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is denied; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs’ affidavit in support of their motion for summary judgment set forth only that the affiant is a “practice and billing manager” and an “officer” of “plaintiff” notwithstanding that there are three named plaintiffs each asserting independent standing as an insured’s assignee. As we cannot assume that the affiant acted on behalf of one particular plaintiff or on behalf of all of the plaintiffs (A.B. Med. Servs. v Allstate Ins. Co., NYLJ, Mar. 18, 2004 [App Term, 9th & 10th Jud Dists]), such an affidavit is “insufficient to establish that plaintiffs provided defendant with properly completed claim forms” (id.). We further note that as to D.A.V. Chiropractic P.C., the record before us contains no assignment of benefits form on plaintiff’s behalf, an additional reason for the motion’s denial as to this plaintiff. Accordingly, plaintiff’s motion for summary judgment [*2]should have been denied upon plaintiffs’ failure to make out a prima facie case.

With respect to defendant’s cross motion for summary judgment, upon the papers presented, defendant failed to establish its entitlement to judgment dismissing the action as a matter of law. Defendant’s claim that the assignors failed to cooperate with its requests to examine them under oath is without merit because when plaintiffs filed their claims, there was no provision in the insurance regulations for such a procedure (compare 11 NYCRR 65.15 [d] [3]; 65.2 [a], with 11 NYCRR 65-1.1 [d]; 65-3.5 [e], eff. April 5, 2002; e.g. King’s Med. Supply Inc v Progressive Ins., 3 Misc 3d 126 [A], 2004 NY Slip Op 501312 [U] [App Term, 2d & 11th Jud Dists]). Defendant’s argument that its policy provisions require an insured’s cooperation with an examination under oath is likewise misplaced in that the mandatory no-fault endorsement “cannot be qualified by . . . conditions . . . of the liability portions of the policy” (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]).

However, for the reasons set forth in Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (No. 2003-1289 N C decided herewith), involving the same assignors and the same traffic incident, we find defendant’s claim, that the underlying traffic incident was staged pursuant to a scheme to defraud, to be supported by sufficient factual allegations in admissible form to require a trial thereon, albeit insufficiently established to warrant accelerated judgment in defendant’s favor.
Decision Date: September 17, 2004

[*1]

Supreme Court, Appellate Term, Second Department, September 17, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Bruno Gerbino & Macchia LLP, Melville, and Rivkin Radler LLP, Uniondale (Evan H. Krinick and Stuart M. Bodoff of counsel), for respondent.

{**5 Misc 3d at 46} OPINION OF THE COURT

Memorandum.

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

Plaintiff, a health care provider, seeking to recover assigned first-party no-fault benefits, established a prima facie entitlement to summary judgment by the submission of a complete proof of claim and the amount of the loss (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]). Defendant failed to deny the claim within the statutory 30-day claim determination period (11 NYCRR 65.15 [g] [3]). Defendant’s requests for examinations under oath did not toll the 30-day period, inasmuch as the insurance regulation in effect at the time plaintiff submitted its claim did not contain a provision requiring a claimant to appear for an examination under oath (see A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists 2003]). 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]).

However, an untimely denial does not preclude a defendant from asserting the defense [*2]that the collision was a staged event in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The investigator’s affidavit set forth sufficient facts to demonstrate that defendant possessed 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]). As a result, because 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.

McCabe, P.J., Rudolph and Angiolillo, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered June 10, 2003, as denied its motion for partial summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff’s motion for partial summary judgment granted in the principal sum of $2,365 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff sues to recover first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff established a prima facie case by the submission of a properly
completed claim (see Amaze Med. Supply Inc. 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 show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Although defendant timely denied the claim for $765 within 30 days of its receipt (Insurance Law § 5106; 11 NYCRR 65.15 [g] [3]), the peer review report upon which the denial of benefits was predicated was not in admissible form and was therefore insufficient to defeat [*2]plaintiff’s summary judgment motion. An affirmation of a chiropractor does not constitute competent evidence (see CPLR 2106; see also Cubero v DiMarco, 272 AD2d 430 [2000]).
With respect to plaintiff’s claims for $670 and $930, defendant failed to deny them within 30 days of their receipt. Thus, defendant is precluded from raising the defense of medical necessity as to those claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Accordingly, inasmuch as defendant failed to raise a triable issue of fact, plaintiff’s motion should have been granted, and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $2,365 (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; see also St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: July 21, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Nassau County

(M. Massell, J.), dated April 14, 2003, denying its motion for summary judgment.

Order unanimously modified by granting defendant’s motion to the extent of awarding it partial summary judgment dismissing the complaint as to $1,236.99 of the principal sum sought; as so modified, affirmed without costs.

In this action to recover $1,340.30 in assigned first-party no-fault benefits, for $1,236.99 in health services provided December 5, 2001 and $103.31 in such services provided December 19, 2001, defendant moved for summary judgment dismissing the
complaint on the ground that plaintiff’s claim form was submitted more than 180 days after the services were provided (11 NYCRR 65.12 [e]; Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454 [1996]). Given defendant’s acknowledgment that the claim form was received on June 11, 2002, i.e., within 180 days of December 19, 2001, the court properly denied the motion as to the December 19, 2001 benefits, having correctly determined that such claim was necessarily timely submitted.

However, the claim for the benefits rendered December 5, 2001 was not received within 180 days, and plaintiff failed to prove that it mailed said claim within the statutory time. Proof of proper mailing requires evidence of “actual mailing or . . . a standard office practice or procedure [*2]designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998]; Amaze Med. Supply Inc. v Allstate Ins. Co., 2 Misc 3d 138 [A], 2004 NY Slip Op 50264 [U]; S & M Supply Inc. v Geico Ins., 2003 NY Slip Op 51192 [U]). Plaintiff’s proof, the affidavit of its “manager,” made no reference to plaintiff’s standard office mailing practices or [*3]
procedures, and the bare averment therein that “[p]laintiff/provider mailed all bills to defendant . . . within the statutory 180 day time period” does not establish the basis of her personal knowledge of the mailing (S & M Supply Inc. v Geico Ins., supra; Amaze Med. Supply Inc. v Colonial Penn Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 50471 [U] [App Term, 2d & 11th Jud Dists]; Jul & Pol Corp. v American Tr. Ins. Co., 2003 NY Slip Op 51153 [U]).
Decision Date: July 01, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Nassau County (J. Spinola, J.), entered April 23, 2003, which granted partial summary judgment in favor of plaintiff in the amount of $1,014.88, plus interest and attorney’s fees, deemed an appeal from the judgment of the same court, entered pursuant thereto on May 15, 2003, awarding plaintiff the principal sum of $1,014.88, plus interest and attorney’s fees (see Neuman v Otto, 114 AD2d 791 [1985]). [*2]

Judgment affirmed without costs.

Plaintiff, a medical supply house, instituted this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, it moved for summary judgment on the ground that the denial of claim was untimely, the insurer having failed to pay or deny the claim within 30 days of its receipt, in violation of Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). Defendant opposed, on the ground that its requests for a comprehensive narrative from the referring physician and its notices of examinations under oath (EUOs) of plaintiff’s assignor were proper requests for verification, which tolled the commencement of the 30-day period within which defendant was obligated to pay or deny the claim. The court below granted plaintiff’s motion, finding that the denial was untimely inasmuch as the verification requests were not in proper form and therefore were ineffective to toll the 30-day period.

A review of the record indicates that plaintiff established its prima facie entitlement to partial summary judgment by the submission of the statutory forms setting forth “the fact and amount of loss sustained” (Damadian MRI in Elmhurst, P.C. v Liberty Mutual Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th & 10th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant failed to meet its burden, since its papers in opposition to plaintiff’s
motion for summary judgment did not establish that the policy contained an endorsement authorizing EUOs, pursuant to 11 NYCRR 65-1.1 (d), which regulation became effective on April 5, 2002. In the absence of such a showing, defendant failed to demonstrate that its time to deny the claim was tolled (see S&M Supply Inc. v State Farm Mutual Automobile Ins. Co., No. 2003-1087 N C decided herewith). Assuming, however, the existence of an appropriate endorsement provision, defendant’s opposition papers nonetheless were insufficient as they did not contain an affidavit of someone with personal knowledge that its verification requests were actually mailed, or describing the standard operating procedures used by defendant to ensure that its requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Since defendant failed to establish by competent evidence that it timely mailed its verification requests, the commencement of the 30-day period in which it was required to pay or deny the claim was not tolled (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]). [*3]

We note that a request for additional verification may be made by letter and need not be on a prescribed form (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]; Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482 [2002]).

McCabe, P.J., and Rudolph, J., concur.

Angiolillo, J., taking no part.
Decision Date: June 30, 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 (M. Massell, J.), dated May 19, 2003, as denied its motion for summary judgment.

Order, insofar as appealed from, unanimously reversed without costs, plaintiff’s 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.

In this action to recover assigned first-party no-fault benefits for medical services, plaintiff established a prima facie entitlement to summary judgment by the submission of a proper proof of claim (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). In opposition, defendant failed to raise any triable issues of fact. Defendant denied plaintiff’s claims on the ground that plaintiff’s assignors failed to appear for scheduled examinations under oath (EUOs) and on the basis of allegedly fraudulent conduct in connection with the accident. It is uncontroverted that plaintiff’s claim forms, submitted subsequent to April 5, 2002, were received by the defendant between April 18, 2002 [*2]and May 6, 2002, and that the defendant did not issue the denial of claim forms until September 12, 2002, well beyond the 30-day statutory period within which it had to pay or deny the benefits (see 11 NYCRR 65-3.8 [c]).

Moreover, defendant’s requests for EUOs did not toll the 30-day statutory time period. The applicable revised insurance regulation, effective on April 5, 2002, includes EUOs in the prescribed “Mandatory Personal Injury Protection Endorsement,” providing that an eligible injured person shall submit to EUOs as may reasonably be required (11 NYCRR 65-1.1[d]). In order to toll the 30-day period in which to pay or deny the claim, a request for EUOs as additional verification to establish the proof of claim, must be done within 15 business days of receipt of the prescribed verification forms (11 NYCRR 65-3.5 [b]). EUOs are also subject to the same 30-day scheduling period required of independent medical examinations (11 NYCRR 65-3.5 [d]), and to virtually identical scheduling and reimbursement conditions imposed on medical examinations (11 NYCRR 65-3.5 [e]). Similarly, where an EUO, as a medical examination, has been requested as verification, it is deemed to have been received by the insurer on the day the examination was performed (11 NYCRR 65-3.8 [a] [1]).

Consistent with the Insurance Department’s interpretation of the new regulation, which is entitled to great deference (see Matter of Medical Malpractice Ins. Ass. v Superintendent of Ins., 72 NY2d 753 [1988], cert denied 490 US 1080), 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 (see Circular Letter No. 9 [2002]). Therefore, as to the claims submitted on or after April 5, 2002, an insurer’s request for EUOs may toll the 30-day period, depending on the policy endorsement in effect, and the insurer’s compliance with the regulatory time periods and conditions applicable to EUOs.

In the instant case, defendant’s opposition papers failed to establish the terms of the insurance policy in effect. Absent a showing that the subject insurance policy contained an endorsement permitting EUOs, defendant has failed to establish that its time to deny the claim was tolled by virtue of its EUO request. However, even assuming the existence of an appropriate endorsement provision in the policy, defendant has failed to establish entitlement to a tolling of the 30-day period. Defendant’s first requests for EUOs by letters dated June 14, 2002 were not made within the requisite 15-day time period for additional verification (11 NYCRR 65-3.5 [b]), nor did these schedule the examinations within the requisite 30 calendar days from the date of receipt of the prescribed verification forms (11 NYCRR 65-3.5 [d]). The remaining letters forwarded by defendant did not constitute proper verification requests for EUOs and thus did not extend defendant’s time to pay or deny the claim. Accordingly, defendant’s denial of benefits was untimely, and defendant is precluded from asserting the defense of non-compliance with its requests for EUOs (see Presbyterian Hosp. In City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

With regard to the defendant’s denial of benefits based on alleged fraudulent conduct, it is well settled that if a collision is caused in furtherance of an insurance fraud scheme, it would not be a covered accident (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; see also State Farm Mut. Auto Ins. Co. v Laguerre, 305 AD2d 490 [2003]), and defendant is not precluded from asserting this defense despite an untimely denial of the claim (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]; Matter of Metro [*3]Med. Diagnostics v Eagle Ins. Co., 293 AD2d at
752). The defendant’s submissions in support of its allegations of fraud, consisting of an affidavit of an attorney who had no personal knowledge of the facts, and the unsworn letter of its investigator with the Special Investigative Unit, do not constitute evidentiary proof in admissible form (Rue v Stokes, 191 AD2d 245 [1993]), and consequently fail to raise triable issues of fact. Accordingly, plaintiff’s motion for summary judgment should have been granted, and the matter should be 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.
Decision Date: June 30, 2004

[*1]

Supreme Court, Appellate Term, Second Department, June 7, 2004

APPEARANCES OF COUNSEL

Bruno Gerbino & Soriano LLP, Melville (Charles W. Benton of counsel), for appellant. Israel, Israel & Purdy LLP, Great Neck (William M. Purdy of counsel), for respondent.

{**4 Misc 3d at 93} OPINION OF THE COURT

Memorandum.

Orders unanimously affirmed without costs.

In this action to recover $765 in first-party no-fault benefits for medical treatment provided its assignor, plaintiff established its prima facie case for summary judgment by proof it submitted properly executed statutory claim forms (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224 [1986]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant’s conceded failure to pay or reject the claim within 30 days of receipt precluded defendant from interposing most defenses (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). We cannot agree that defendant’s repeated requests of the assignor for an examination under oath (EUO) tolled the claim determination period because the insurance regulations then in effect did not provide for EUOs as a form of verification (Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co., 4 Misc 3d 142[A], 2004 NY Slip Op 51041[U] [App Term, 2d & 11th Jud Dists]; Triboro Chiropractic & Acupuncture P.L.L.C. v Kemper Auto & Home Ins. Co., 4 Misc 3d 138[A], 2004 NY Slip Op 50905[U] [App Term, 2d & 11th Jud Dists]). A new regulation, effective April 5, 2002, which explicitly provides for such [*2]verification, is inapplicable to the instant claim (see 11 NYCRR 65-3.5 [e]; Kings Med. Supply Inc. v GEICO Ins., 4 Misc 3d 138[A], 2004 NY Slip Op 50904[U] [App Term, 2d & 11th Jud Dists]). We have also rejected the argument that the absence of an EUO provision in the former verification scheme may be remedied by reference to policy provisions requiring that an insured cooperate with the insurer’s investigation of a claim, even if a clause therein explicitly provides for cooperation in that form (e.g. King’s Med. Supply v Kemper Auto & Home Ins. Co., 3 Misc 3d 131[A], 2004 NY Slip Op 50401[U] [App Term, 2d & 11th Jud Dists]). Such provisions {**4 Misc 3d at 94}may not be invoked to alter the terms of the mandatory no-fault endorsement because the “internally complete and distinct part of the insurance policy . . . cannot be qualified by . . . conditions . . . of the liability portions of the policy” (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]; 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]). Finally, an insurer may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30-day claim determination period (Ocean Diagnostic Imaging v Nationwide Mut. Ins. Co., supra; see also 11 NYCRR 65.15 [e] [2]; Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999, at 31, col 4 [App Term, 9th & 10th Jud Dists] [letter informing claimant that a peer review was to be conducted is not a proper verification request]).

With regard to the fraud allegation, raised for the first time in defendant’s motion for summary judgment, defendant did not specify whether the fraudulent conduct was a staged automobile incident or the provider’s unilateral scheme to obtain no-fault benefits for unnecessary or excessive medical treatment. If the latter is the case, the purported defense is precluded by defendant’s untimely claim denial (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285). If the former is the case, the defense survives preclusion (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]) and would, if substantiated, constitute a complete defense to the action (Matter of Government Empls. Ins. Co. v Shaulskaya, 302 AD2d 522 [2003]). However, defendant failed to adduce proof in admissible form sufficient to create a triable issue of fraud, having submitted no affidavit by anyone with personal knowledge of the investigation. The herein allegations of fact, by an attorney who does not allege such knowledge, amount to mere unsubstantiated hearsay (e.g. Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U], *1-2 [App Term, 2d & 11th Jud Dists] [“(An) attorney’s affidavit, consisting of unsubstantiated hypotheses and suppositions, is legally insufficient to support defendant’s fraud allegation”]).

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the District Court, Nassau County (J. Spinola, J.), entered May 19, 2003, which denied their motion for summary judgment.

Order unanimously affirmed with $10 costs.

Plaintiffs commenced the instant action to recover assigned first-party no-fault benefits. In opposition to plaintiffs’ motion for summary judgment, defendant submitted an affidavit from an investigator employed within defendant’s Special Investigations Unit. Contrary to plaintiffs’ contention, the investigator’s detailed affidavit set forth ample facts and founded beliefs to establish the existence of a triable issue of fact as to whether there was a lack of coverage because the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As a result, plaintiffs’ motion for summary judgment was properly denied.

Plaintiffs’ remaining contentions are also lacking in merit.
Decision Date: June 04, 2004