—[*1]In an action to recover no-fault insurance benefits, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), entered February 14, 2005, as, upon granting the plaintiffs’ motion, in effect, for reargument of their motion for summary judgment which was denied in a prior order dated May 11, 2004, and, in effect, for reargument of the defendant’s cross motion for summary judgment which was granted in the prior order dated May 11, 2004, granted that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action and denied that branch of the defendant’s cross motion which was for summary judgment dismissing that cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and upon reargument, that branch of the plaintiffs’ motion which was for summary judgment on their first cause of action is denied and that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action is granted, and the first cause of action is dismissed.

The defendant established its entitlement to judgment as a matter of law on the first cause of action on the ground that the policy limits had been exhausted (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]; see also Pantaleone v Viewmore Homes, 225 AD2d 599 [1996]). The plaintiffs failed to raise a triable issue of fact. [*2]

The plaintiffs’ remaining contentions are without merit. Florio, J.P., Santucci, Goldstein and Skelos, JJ., concur.

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 (Dolores L. Waltrous, J.), entered on March 3, 2005. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

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 [*2]
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]). Any deficiencies in plaintiff’s moving papers concerning proof of its submission of the claims were cured by 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]; Ultra DiagnosticsImaging 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 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]). While 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]), defendant’s contention that its request that plaintiff’s assignor execute and return the transcript of his examination under oath (EUO) tolled the 30-day period is without merit since the insurance regulations in effect at the time the claims were submitted did not even require the claimant to appear for an EUO (see Ocean Diagnostic Imaging P.C. v State
Farm Mut. Auto. Ins. Co., 5 Misc 3d 53 [App Term, 9th & 10th Jud Dists 2004]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). In any event, even assuming that a request that a claimant execute and return an EUO transcript would constitute a valid basis for tolling the 30-day claim determination period, defendant herein failed to proffer proper proof of having mailed said request (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]). 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]).

Defendant also opposed the motion on the ground of fraud. To the extent that defendant’s claim of fraud is, in essence, premised on fraudulent billing or excessive medical treatment, these are defenses subject to the 30-day preclusion remedy (see 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; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29, supra; Fair Price Med. Supply Corp. 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, supra).

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite its untimely denial of
the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that defendant’s submissions were 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 at 199).

Consequently, plaintiff’s motion for summary judgment should have been denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 14, 2006

—[*1]

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated March 17, 2005, which granted the motion of the plaintiff New York and Presbyterian Hospital, as assignee of Yaakov Elman, for summary judgment on the first cause of action and denied its cross motion for summary judgment dismissing that cause of action.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and the first cause of action is dismissed.

The Supreme Court should have denied the motion of the plaintiff New York and Presbyterian Hospital, as assignee of Yaakov Elman (hereinafter the hospital), for summary judgment on the first cause of action to recover no-fault benefits under an insurance contract its assignee had with the defendant Allstate Insurance Company (hereinafter the insurer). The hospital failed to establish its entitlement to judgment as a matter of law (see CPLR 3212; Alvarez v Prospect Hosp., 68 NY2d 320-327).

The Supreme Court should have granted the insurer’s cross motion for summary judgment dismissing the first cause of action. The insurer made a prima facie showing, through the affidavits of its claims representatives, the “denial of claim” forms sent to the hospital and to Mount Sinai Hospital (the healthcare provider whose claim exhausted the policy limits), and its payment [*2]log listing all payments made to other healthcare providers under the subject policy, that it had exhausted the policy’s coverage limits before it became obligated to pay the hospital’s claim and that such payments were made in compliance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 [2005]). In opposition, the hospital failed to raise a triable issue of fact.

The hospital’s remaining contentions are without merit. Adams, J.P., Skelos, Fisher and Lunn, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Erica L. Prager, J.), entered December 14, 2004. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover $8,388.13 in first-party no-fault benefits for health care services provided plaintiff’s assignor, plaintiff moved for summary judgment. The court below denied the motion and we affirm. Defendant denied receiving the instant claims and plaintiff’s only proof that it submitted its claims was the provider’s statement that “[e]ach of the claims for payment were [sic] timely submitted in the ordinary course of business to [defendant].” Such an assertion failed to prove a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). Although plaintiff proved a claim denial form used by defendant which denied “all” of plaintiff’s claims, the form admitted receipt of no specific claim and cannot be construed to concede that defendant received the specific claims herein at issue.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: April 7, 2006

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 (Dolores L. Waltrous, J.), entered March 4, 2005. The order denied plaintiffs’ motion for summary judgment.

Appeal insofar as taken by plaintiff Square Synagogue Transportation Inc. dismissed.

Order, insofar as appealed from, reversed without costs, motion by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C. for summary judgment granted, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

This action to recover $7,762.98 in assigned first-party no-fault benefits arises from a July 19, 2002 motor vehicle accident which has resulted in two related appeals involving different assignors, which have already been decided by this court: A. B. Med. Servs. PLLC v Utica Mut. Ins. Co. (10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]) and Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (9 Misc 3d 138[A], 2005 NY Slip Op 51747[U] [App Term, 2d & 11th Jud Dists]).

In the instant case, plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C., all providers of health care services, established their prima facie entitlement to summary judgment by proof that they submitted statutory claim forms, setting forth the fact and amounts of the losses sustained, and that payment of no-fault benefits was [*2]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 create a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s December 4, 2002 claim denial was untimely as to all claims with the exception of plaintiff A.B. Medical Services PLLC’s claims for $67.60 and $33.70, and plaintiff Lvov Acupuncture P.C.’s claim for $85. Since the instant claim denial form lacked almost all of the information required for a properly executed form, including the critical information as to the amounts and dates of the claims, and the dates the claims were received, it was tantamount to no denial at all (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005] [“(A) denial of a claim form issued by (an insurer). . . even if timely, (is) fatally defective (if) it omit(s) numerous items of requested information and thus (is) incomplete”]; see also 11 NYCRR 65-3.4 [c] [11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004] [the insurer’s “denial of claim, while timely, was nonetheless fatally defective in that it failed to include a number of basic items called for in the prescribed form”]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613, 614 [1996] [preclusion sanction properly imposed where the insurer “fail(ed) to establish that it issued to the (claimant) a properly completed Denial of Claim Form within the (prescribed) 30-day period”]).

Defendant also failed to establish its defense that the incident was staged as part of a scheme to defraud. The proof offered in the instant case was virtually identical to that offered in the cases of A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (10 Misc 3d 50, supra) and Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (9 Misc 3d 138[A], 2005 NY Slip Op 51747[U], supra) and, as we noted in those cases, none of the proof offered was sufficient to establish said defense: the investigators’ reports and the statements of the operators of the vehicles involved in the accident were unsworn; defense counsel’s affirmation contained allegations which were not based upon personal knowledge; statements in the affidavit of defendant’s employee regarding “material misrepresentations” in the presentation of the claims were conclusory; and neither the affirmation nor the affidavit sufficed as a proper basis for the admission of the unsworn investigative reports.

Thus, notwithstanding the fact that defendant was not precluded from asserting the defense that the incident was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]), its submissions were insufficient 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 [1999]). Accordingly, defendant failed to demonstrate the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

We note that plaintiff Square Synagogue Transportation Inc. properly concedes in the brief that it is not entitled to the relief sought in the motion below and withdraws its claims (A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, supra).

Accordingly, the order, insofar as appealed from, is reversed, the motion for summary judgment by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Lvov Acupuncture P.C. is granted, and the matter is remanded to the court below for a calculation of [*3]statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 6, 2006

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 (Delores J. Thomas, J.), entered April 12, 2005, deemed (see CPLR 5501 [c]) an appeal from a judgment entered pursuant thereto on May 6, 2005. The judgment awarded plaintiff the sum of $1,091. The appeal brings up for review the order, entered April 12, 2005, which granted plaintiff’s motion for summary judgment.

Judgment 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 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]). The defendant’s denial of claim form indicates that the claim was denied beyond 30 days of its receipt by defendant (11 NYCRR 65-3.8 [c]).

In opposition to plaintiff’s motion, defendant argued, inter alia, that it issued a proper and timely denial based on the assignor’s failure to attend examinations under oath (EUOs). The revised insurance regulations, effective on April 5, 2002, which are applicable herein, 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]). However, in order to assert the defense of failure to appear, “the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the [*2]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] [App [*3]
Term, 9th & 10th Jud Dists]; see also Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]). In the instant case, defendant’s submissions failed to establish that the insurance policy contained an endorsement authorizing EUOs. Accordingly, any post-claim EUO request by defendant cannot toll the 30-day period within which it was required to pay or deny the claim (see Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U], supra; 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]). In any event, defendant has failed to prove mailing of the EUO notices, since there was no allegation by one with personal knowledge that the EUO notices were mailed, no description of standard office mailing procedure so as to give rise to the presumption of mailing (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]), and no sufficient allegation that it complied with the follow-up requirements with regard to any post-claim EUO notice (see 11 NYCRR 65-3.6 [b]). Further, the purported post-claim EUO notice dated July 15, 2002, for which there was no admissible proof of mailing, does not [*4]
constitute proper notice of EUOs, as it merely indicates a delay in the processing of the claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Having failed to establish a timely denial of the claim, 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 defenses of nonconformity with the Worker’s Compensation fee schedules (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U], supra; Triboro Chiropractic & Acupuncture v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]) and lack of medical necessity (see Amaze Med. Supply v Allstate Ins. Co., 2 Misc 3d 134[A], 2004 NY Slip Op 50211[U] [App Term, 2d & 11th Jud Dists]). The court below properly determined that defendant’s failure to seek verification of the assignment and to allege any deficiency in the assignment in a timely denial of claim form, in any event, constitutes a waiver of any defenses with respect thereto (see 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 [*5]
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, plaintiff’s motion for summary judgment was properly granted.

Defendant has failed to preserve its remaining contention for appellate review, and its submissions in support thereof involve matters dehors the record which are not reviewable for the first time on appeal.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 6, 2006

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 January 14, 2005. The order granted defendant’s motion to vacate the default judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, a default judgment was entered and defendant moved to vacate same. Upon a review of the record, we [*2]
find no basis upon which to disturb the lower court’s finding that defendant established both a reasonable excuse for its default and a meritorious defense to the action
(see Titan Realty Corp. v Schlem, 283 AD2d 568 [2001]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]). Accordingly, the lower court’s order granting defendant’s motion to vacate the default judgment should be affirmed.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 6, 2006

—[*1]

In an action to recover no-fault insurance benefits under certain insurance contracts, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Dunne, J.), dated August 18, 2005, which granted the defendant’s motion to vacate a judgment entered April 1, 2005, upon its failure to appear or answer, awarding the plaintiffs the principal sum of $28,060.13, and for an extension of time to answer pursuant to CPLR 3012 (d), and granted the defendant’s separate motion to quash an information subpoena.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate its default in answering and for an extension of time to answer pursuant to CPLR 3012 (d). The defendant demonstrated both a reasonable excuse for its brief delay in serving an answer, and potentially meritorious defenses. Furthermore, there is a strong public policy in favor of resolving cases on the merits, and the default was not willful, nor was there a showing of prejudice to the plaintiffs (see Harcztark v Drive Variety, Inc., 21 AD3d 876 [2005]; Bunch v Dollar Budget, Inc., 12 AD3d 391 [2004]; Orwell Bldg. Corp. v Bessaha, 5 AD3d 573 [2004]; Sippin v Gallardo, 287 AD2d 703 [2001]).

The defendant’s motion to quash the information subpoena was properly granted (see CPLR 2304). Florio, J.P., Santucci, Mastro and Rivera, JJ., concur.

—[*1]In an action to recover no-fault medical payments, the plaintiffs New York and Presbyterian Hospital, as assignee of William Browne, and New York Hospital Medical Center of Queens, as assignee of Amy Kazane, appeal from an order of the Supreme Court, Nassau County (Feinman, J.), dated July 15, 2005, which granted the defendant’s motion to vacate a judgment of the same court entered March 11, 2005, upon its failure to appear or answer the complaint, and for leave to serve a late answer.

Ordered that the order is affirmed, with costs.

To vacate its default, the defendant was required to demonstrate both a reasonable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534 [2006]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]). The defendant made that showing. Accordingly, the Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate the judgment entered upon its failure to appear or answer the complaint, and for leave to interpose a late answer. Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.

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 (Ann E. O’Shea, J.), entered December 29, 2004. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

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

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider moved for summary judgment. In opposition to the motion, defendant argued that plaintiff’s assignor failed to attend examinations under oath (EUOs) and that the accident was in furtherance of an insurance fraud scheme. However, defendant failed to prove that the applicable insurance policy contained an endorsement authorizing EUOs as a form of verification (Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56, 57 [App Term, 2d & 11th Jud Dists 2004]). Thus, the EUO requests did not toll the 30-day claim determination period (11 NYCRR 65-3.8 [c]) rendering the denial untimely (Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [*2][App Term, 2d & 11th Jud Dists]).

Although the defense based on a claim that the accident was staged in furtherance of a scheme to defraud survives the preclusive effect of an untimely denial (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), none of the investigative reports and statements offered in support of the fraud claim were in admissible form. Moreover, the attorney’s factual allegations in support of the defense constituted mere inadmissible hearsay and the affirmation of defendant’s claims representative, standing alone, did not establish a triable issue of fraud. Accordingly, the order, insofar as appealed from, is reversed, plaintiff’s motion for [*3]
summary judgment is granted and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the order denying plaintiff’s motion for summary judgment.

In the first instance, it is important to note that the majority finds that the defendant properly demanded that the assignor appear for an examination under oath (EUO) on several occasions in accordance with the regulations, and that on each occasion the plaintiff’s assignor failed to appear.

The majority does not contest that the revised regulations issued by the Department of Insurance provide that the plaintiff’s assignor must submit to EUOs as often as the insurer “may reasonably” require (11 NYCRR 65-1.1[d]). Indeed, it is also
uncontested that the claims at issue herein were submitted subsequent to the effective date of the revised regulations. One would surmise that the majority would therefore conclude that this action must be dismissed.

However, that is not the case. Despite all these facts and circumstances, the majority finds that the defendant failed to raise a triable issue of fact solely because it did not produce a copy of the actual contract of insurance to establish that the “right” to demand an EUO was contained in the contract. This holding appears inappropriate, at least when one considers the long line of decisions involving EUOs prior to the issuance of this revised regulation (pre-April 5, 2002) (see A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 53 [App Term, 9th & 10th Jud Dists 2004]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]). In that line of cases, it was held that even though the policy of insurance required submission to an EUO, demands for same had no significance inasmuch as there was no specific provision in the regulations providing for such an examination, a finding that I do not agree with.

Now that the Insurance Department revised its regulations to meet said holdings, this Court denies their effect by now requiring the defendant to produce a copy of the insurance policy when it was never required to do so in the past.

It is for this reason that I dissent and would affirm the lower court’s denial of the plaintiff’s motion for summary judgment.
Decision Date: March 27, 2006