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 (Manuel J. Mendez, J.), entered November 15, 2004. The order denied plaintiff’s motion for summary judgment.

Order 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.

Contrary to the determination of the court below, in this action to recover first-party no-fault benefits for medical services rendered to its assignors for injuries they sustained in accidents in February and May 2003, plaintiff established its prima facie entitlement to summary judgment by proof that it submitted 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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]). Since defendant failed to seek verification of any of the assignments, and did not allege any deficiency in the assignments in its denial of claim forms, it waived 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 Cas. & [*2]Sur. Co., 233 AD2d 433 [1996]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

Defendant failed to raise a triable issue of fact as to the $912 claim (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). It is uncontroverted that defendant received plaintiff’s $912 claim in July 2003, for which it requested, in October 2003, additional verification in the form of an examination under oath. Since defendant failed to show how its October request was timely made (see 11 NYCRR 65-3.5 [b]), we find that said [*3]
request was untimely and the 30-day statutory period within which it had to pay or deny the claim was not tolled (see e.g. Struhl v Progressive Cas. Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50864 [App Term, 9th & 10th Jud Dists]). Assuming, arguendo, that the additional verification request was timely, defendant would have, nonetheless, failed to raise a triable issue of fact since it did not provide plaintiff with a follow-up request after the assignor did not appear for the scheduled examination (see 11 NYCRR 65-3.6 [b]). By not providing plaintiff with a follow-up request, defendant abandoned its verification request and may not, as a matter of law, use the failure of the plaintiff to provide said verification as a basis to deny the claim (see King’s Med. Supply v Kemper Auto & Home Ins. Co., 7 Misc 3d 128[A], 2005 NY Slip Op 50450 [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded from raising most defenses as to the $912 claim, and plaintiff is entitled to summary judgment thereon.

In support of its motion for summary judgment to recover its $2,670.40 claim for MRIs provided to its assignor, plaintiff submitted defendant’s timely denial of claim form which included an unsworn peer review report dated March 2003, asserting the lack of medical necessity for the MRIs based upon a review of a doctor’s report dated March 19, 2003. However, also in support of its motion, plaintiff submitted another report from the same doctor, dated February 26, 2003, which asserted in sufficient detail the [*4]
medical necessity for the MRIs. Since plaintiff’s moving papers asserted, in admissible form, the medical necessity of the MRIs, and defendant’s opposition papers failed to address plaintiff’s proof as set forth in the sworn February doctor’s report, defendant failed to raise any triable issue with respect to the lack of medical necessity. Consequently, plaintiff is entitled to summary judgment on its $2,670.40 claim.

In view of the foregoing, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Golia, J., concurs in a separate memorandum. [*5]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and BELEN, JJ.
OCEAN DIAGNOSTIC IMAGING P.C.
a/a/o Salena Harrell
Jose Batiz,

Appellant,

-against-
ALLSTATE INSURANCE COMPANY,

Respondent.

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 disagree with certain propositions of law set forth in the cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

I must also note an important precept of law that has been properly applied in this case but is all too often forgotten. Once a party affirmatively and properly establishes an issue of fact, it is incumbent upon the other side to oppose it either factually or on “legal’ grounds. Failure to do so will result in that particular issue being determined in favor of the proponent (Millennium Med. Instruments v NYC Trans. Auth., 10 Misc 3d 139[A], 2005 NY Slip Op 52205[U] [App Term, 2d & 11th Jud Dists]). It must be remembered that this precept must be applied equally to both sides.

In the case at bar, the plaintiff presented a medical report in its motion for summary judgment by a Dr. Raufov dated February 26, 2003. That document effectively rebutted the findings of the defendant’s peer review doctor who did not consider the February 26, 2003 report when making his findings that resulted in a denial of benefits form being served on the claimant.

Inasmuch as the defendant failed to address this issue in its opposing papers, the majority was correct in holding that plaintiff’s prima facie showing of medical necessity went unrebutted and therefore was deemed proven. [*6]
Decision Date: February 03, 2006

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, Third District (Scott Fairgrieve, J.), entered February 28, 2005. The order granted plaintiff’s motion for summary judgment.

Order 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 a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see
Insurance Law § 5106; 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]). The burden therefore shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the case at bar, the defendant failed to establish that the denial was timely mailed within the 30-day prescribed claim determination period. Defendant failed to submit any documentary proof or an affidavit from one with personal knowledge establishing that the denial was sent to plaintiff (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]). Nor did defendant create a presumption of mailing by submission of an affidavit describing the standard operating procedures it uses to ensure that its denial was mailed (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Ocean Diagnostic [*2]Imaging P.C. v General Assur. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50435[U] [App Term, 9th & 10th Jud Dists]). Defendant is therefore precluded from raising the defense that the procedure was not medically necessary because defendant neither denied the claim within 30 days of receipt of the claim nor effectively extended the 30-day period (see
[*3]Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
Consequently, the motion court properly granted plaintiff’s motion for summary
judgment.

Rudolph, P.J., Angiolillo and McCabe, JJ., concur.
Decision Date: February 02, 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 October 29, 2004. The order granted plaintiff’s motion for summary judgment.

Order 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 a claim, 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]). We find no merit to defendant’s contention that the failure of one of plaintiff’s assignors, Claire, to appear for an examination under oath (EUO) precludes summary judgment with respect to the claims submitted for treatment rendered to said assignor. The submissions of defendant’s claims representative and counsel failed to establish that they had personal knowledge that the letters requesting the EUO were mailed to Claire. Nor did said submissions create a presumption of mailing by setting forth the standard office practice or procedures used to ensure that such letters are properly addressed and mailed (see Amaze Med. Supply Inc. v State Farm Mut. Auto. Ins. Co., 8 Misc 3d 139[A], 2005 NY Slip Op 51315[U] [App Term, 2d & 11th Jud Dists]). Moreover, defendant failed to introduce evidence in admissible form establishing that the insurance policy it issued to its insured actually contained an endorsement entitling it to EUOs (see Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], [*2]2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]).

Although defendant issued an untimely denial of the claim relating to plaintiff’s other assignor, Charmant, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). However, defendant failed to establish that it possessed a “founded belief that [Charmant’s] 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]). Indeed, although defendant annexed Charmant’s EUO testimony, defendant may not rely upon its bare representation as to what another passenger in the car, Phillipe, stated during said passenger’s EUO, in an attempt to demonstrate the existence of an issue of fact (see Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

In light of the foregoing, the order should be affirmed because plaintiff was entitled to summary judgment upon both claims.

Rios and Belen, JJ., concur.

Golia, J.P., dissents in a separate memorandum.

Golia, J.P., dissents and votes to reverse the order and deny plaintiff’s motion for summary judgment in the following memorandum.

I am in agreement with the majority that an untimely denial does not preclude a defendant from asserting the defense that the claimed collision was in furtherance of a scheme to defraud.

However, I disagree with the majority when they insist that the holding of the Court of Appeals in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) requires that in order for a defendant to have a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199), the defendant must submit sworn statements establishing those findings. I submit that the Court of Appeals only requires that the defendant provide a sworn affidavit (affirmation) which establishes that the affiant has a belief which is “founded” upon information obtained by a reasonable investigation. The actual source materials uncovered by that investigation such as interviews, documents, examination under oath transcripts, etc., need not be submitted and certainly not in a form that would constitute sworn testimony. That, in my opinion, is what is going to be required at trial.

Accordingly, I dissent and vote to reverse and deny plaintiff’s motion for summary judgment.
Decision Date: February 01, 2006

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the defendant appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), entered April 20, 2005, which granted that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, asserted on behalf of the plaintiff Mount Sinai Hospital, as assignee of Trinidad Goforth, and, in effect, denied that branch of its cross motion which was for summary judgment dismissing the first cause of action.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was for summary judgment on the first cause of action and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the appellant.

In support of that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, asserted on behalf of the plaintiff Mount Sinai Hospital, as assignee of Trinidad Goforth (hereinafter Mount Sinai), sufficient evidentiary proof was submitted to establish, prima facie, that the defendant, Allstate Insurance Company (hereinafter Allstate), did not pay or deny Mount Sinai’s claim for no-fault medical payments within 30 days as required by 11 NYCRR 65-3.8 (c). However, the evidence submitted by Allstate in opposition to the motion and in support of [*2]that branch of its cross motion which was for summary judgment dismissing the first cause of action, while insufficient to establish its prima facie entitlement to judgment as a matter of law, was sufficient to raise a triable issue of fact as to whether Mount Sinai complied with a demand for verification in accordance with the mandates of 11 NYCRR former 65.15 (g) (1) (i) and (2) (iii). Until it is established when the 30-day period within which Allstate was required to respond began to run, any claim for payment was premature (see 11 NYCRR former 65.15 [g] [1] [i]; [2] [iii]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2002]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; see also Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, the Supreme Court correctly denied that branch of the cross motion which was for summary judgment dismissing the first cause of action, but should not have granted that branch of the motion which was for summary judgment on the first cause of action. Cozier, J.P., Santucci, Spolzino 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 (Peter Paul Sweeney, J.), entered December 15, 2004. The order granted plaintiff’s motion for summary judgment.

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

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted claims, 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]). Inasmuch as defendant failed to pay or deny the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, despite the untimely denials, defendant was not precluded from asserting the defense that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [*2][1997]).

Defendant’s submissions, which included an affidavit of defendant’s claims specialist and a copy of the transcript of the examination under oath of plaintiff’s assignor, were sufficient to support its allegations of fraud, and 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., 90 NY2d at 199). Accordingly, since [*3]
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 should have been denied by the court below.

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

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and BELEN, JJ.
JEFFREY I. RUBIN, PHD PSYC. SVCS., PC,
Assignee of ELSIE PLAISIMOND,
ELSIE PLAISMOND, ELSIE PLCUSMOND
and ELSIE PLAISMOND,

Respondent,

-against-
UTICA MUTUAL INS. CO.,

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 disagree 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: December 30, 2005

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, Third District (Erica L. Prager, J.), entered November 23, 2004. The order, sua sponte, severed the causes of action without passing upon plaintiffs’ motion for summary judgment.

On the court’s own motion, the notice of appeal from so much of the order as, sua sponte, severed the causes of action is treated as an application for leave to
appeal, and such leave is granted (see Tilcon N.Y. v Transcontinental Ins. Co., 261 AD2d 608 [1999]).

Order unanimously modified by remanding the matter of Valery A. Berger, M.D., Assignee of Svetlana Demine v Liberty Mutual Insurance Company to the court below for a determination of said plaintiff’s motion for summary judgment; as so modified, affirmed without costs.

In or about February 2004, 11 different plaintiffs commenced this action to recover [*2]attorney’s fees and interest on 14 first-party no-fault claims, based on 14 unrelated assignors involved in accidents on 14 different dates, which defendant allegedly untimely paid. A review of the record indicates that said claims have no common contract of insurance and have no relation or similarity to each other, other than the fact that the no-fault benefits were allegedly untimely paid by defendant. Consequently, we find that the court below did not abuse its discretion in severing the causes of action in the furtherance of convenience (see CPLR 603; Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]). Thus, plaintiffs’ remaining contentions are rendered academic. However, since the first cause of action relating to Valery A. Berger, M.D. remained under the original index number following severance, the court below should have determined the summary judgment motion on behalf of this plaintiff. Accordingly, the case is remanded for such a determination.
Decision Date: December 30, 2005

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 (Jack Battaglia, J.), entered November 16, 2004. The order granted plaintiffs’ motion for summary judgment.

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

In general, a health care provider establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, 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]). Affidavits of the persons who rendered medical services to plaintiffs’ assignors were submitted in support of plaintiffs’ motion for summary judgment. Although the affiants stated that it was the practice of their offices to mail claim forms within five business days of the date on the claim form, this was not sufficient to constitute proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v [*2]Scottsdale Ins. Co., 286 AD2d 679 [2001]). Nor did the affidavits state that it was the duty of the affiants to ensure compliance with said office procedures or that the affiants had actual knowledge that said office procedures were complied with (see Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as plaintiffs
herein failed to establish by competent proof that the claim forms were
submitted to defendant, they did not make the requisite showing to establish a prima facie entitlement to summary judgment, and the burden never shifted to defendant (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, summary judgment should have been denied.

Pesce, P.J., and Belen, 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., GOLIA and BELEN, JJ.
VIKTOR GRIBENKO, M.D., P.C. and R.I.M MEDICAL
a/a/o OLEG DADASHEV, GENNADIY IZRAILOV,
SCOTT KLEIN, IVAN LAGODYUK, FAUD MEKHTIEV
and DAVID YUSUPOV,
Respondents,

-against-

Golia, J., concurs in the following memorandum:

I concur with the majority in reversing the order of the lower court, but need to amplify the distinction that I find between being a proponent of a motion for summary judgment and opposing a motion for summary judgment.

In the case at bar, plaintiffs moved for summary judgment directing payment for no-fault claims, based upon their contention that they had established a prima facie case that claims were properly sent and that defendant failed to pay or deny the claims within
30 days. The lower court granted summary judgment, and the majority of this court reverses, upon a finding that plaintiffs’ submissions failed to establish that the claim forms were, in fact, actually mailed to defendant.

While I am in agreement with this holding, I feel compelled to clarify the distinction between my support of this holding and my dissent from this court when it grants summary judgment to a plaintiff which establishes actual mailing where the defendant asserts that it mailed a denial but fails to properly establish that the denial form was mailed.

I have held in a number of cases, including my dissent in Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 51772[U] [App Term, 2d & 11th Jud Dists]), that:

“Although the defendant’s affidavits do not contain detailed mailing procedures [*4]necessary to establish proof that a certain item was mailed . . . , I do find that the sworn statements by defendant’s medical examination scheduler’ are sufficient for the purpose of denying a motion for summary judgment (see Weiss v Garfield, 21 AD2d 156 [1964]).” (emphasis added)

The important distinction is that an “incomplete” proof of mailing can be sufficient to warrant denying a motion for summary judgment but is not sufficient to warrant granting a motion for summary judgment.

As stated by the Appellate Division in the early case of Braun v Carey (280 App Div 1019 [1952]), and cited with approval by the Court of Appeals in Sillman v Twentieth Century-Fox Film Corp. (3 NY2d 395 [1957]), the drastic remedy of “summary judgment on affidavits should not be granted where there is any doubt as to the existence of triable issues of fact” (Braun v Carey, 280 App Div at 1019-1020).

Accordingly, I concur with the majority in reversing the order of the lower court.
Decision Date: December 30, 2005

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, Third District (David A. Gross, J.), dated September 8, 2004. The order denied plaintiff’s motion for summary judgment.

Order unanimously 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 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]; 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]). Since defendant failed to pay or deny the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), 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 alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 [*2]NY2d 195, 201 [1997]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). 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: December 30, 2005

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), April 6, 2005, as denied those branches of their motion which were for summary judgment on the first and second causes of action and granted the defendant’s cross motion for summary judgment dismissing those causes of action.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion which was for summary judgment dismissing the second cause of action, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the second cause of action is reinstated.

The Supreme Court correctly granted the branch of the defendant insurer’s cross motion which was for summary judgment dismissing the first cause of action, asserted on behalf of the plaintiff St. Vincent’s Hospital & Medical Center (hereinafter St. Vincent’s), as the defendant established that St. Vincent’s failed to submit its claim within 45 days after rendition of medical services (see 11 NYCRR 65-1.1). St. Vincent’s legal and factual arguments in opposition are without merit.

The court erred, however, in granting the branch of the defendant insurer’s cross [*2]motion which was for summary judgment dismissing the second cause of action, asserted on behalf of the plaintiff Brooklyn Hospital Center. Numerous questions of fact exist as to how this claim was processed in 2002 and again in 2004, whether it should be paid by a workers’ compensation carrier, and even the correct amount thereof. As such, neither party demonstrated its prima facie entitlement to judgment as a matter of law on the second cause of action.

The parties’ remaining contentions are without merit. Adams, J.P., S. Miller, Ritter and Lifson, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, December 15, 2005

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Ronald I. Lemberger, Hempstead (Wesley R. Mead of counsel), for respondent.

{**11 Misc 3d at 30} 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 supplies furnished to its assignor, plaintiff established 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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]; 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 2003]). The record discloses that the defendant submitted a properly completed denial of claim form dated September 25, 2003 covering all the claims involved in the lawsuit. Contrary to the determination of the court below, said September 25, 2003 denial of claim form, which was attached to plaintiff’s moving papers, and is identical to the denial of claim form dated September 25, 2003, included by defendant as part of its papers in opposition to [*2]plaintiff’s motion, adequately established that plaintiff sent, and that defendant received, the claims (see 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 2005]; 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 2004]; cf. SZ Med. P.C. v State-Wide Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50103[U] [App Term, 2d & 11th Jud Dists 2005]).

Defendant’s reliance on SZ Med. P.C. v State-Wide Ins. Co. (6 Misc 3d 132[A], 2005 NY Slip Op 50103[U] [2005], supra) is misplaced. In SZ Med. P.C., plaintiffs’ billing manager stated that she submitted the 15 annexed claim forms without specifying when they were sent, and relied on defendant’s letter which acknowledged receipt of claims but did not specify which of the claims were received. On those facts, this court held:

“In the absence of any evidence as to when plaintiffs{**11 Misc 3d at 31} submitted their claim forms to defendant, and in the absence of any specification in defendant’s letters of February 13, 2002 as to which claims it had received prior thereto, plaintiffs were unable to establish whether payments as to all, or even any, of the claims being sued upon were overdue” (2005 NY Slip Op 50103[U], at *2).

In the instant case, unlike in SZ Med. P.C., defendant submitted the exact same denial of claim form dated September 25, 2003 relied upon by plaintiff, without stating any objection thereto, or denying receipt of said bills, thereby effectively conceding receipt of the same.

Defendant’s September 25, 2003 denial of claim form indicates that defendant’s denial of plaintiff’s claims was 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]). We note that the record also contains denial of claim forms dated January 27, 2003 and January 28, 2003. However, they are fatally defective and of no import since these forms omitted numerous items of requested information, and were thus incomplete (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Furthermore, defendant’s documentary submissions are insufficient to establish proper mailing either of said denial of claim forms or the independent medical examination notices upon which the denials were based (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists 2005]). 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 excessive or unnecessary treatment (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 has failed to submit proof in admissible form in support of its defense of fraud and/or misrepresentation (see A.B. Med. Servs. PLLC v State-Wide Ins. Co., 7 Misc 3d 136[A], 2005 NY Slip Op 50785[U] [App Term, 2d & 11th Jud Dists 2005]). In any event, the unsworn investigative reports indicate that defendant’s claim of fraud is, in essence, premised on fraudulent billing or excessive medical treatment, forms of “provider fraud” which are defenses subject to the 30-day preclusion remedy (Fair Price Med. Supply Corp. v Travelers Indem. Co., 9 Misc 3d 76 [App{**11 Misc 3d at 32} Term, 2d & 11th Jud Dists 2005]; see Central Gen. Hosp., 90 NY2d at 199; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 [*3]Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]; cf. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

Accordingly, summary judgment is granted in favor of plaintiff and the matter remanded to the court below for the calculation of 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 Belen, JJ., concur.