SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Queens County (D. Butler, J.), dated March 10, 2004, which denied his motion for summary judgment.

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

In this action to recover assigned first-party no-fault benefits, plaintiff established a prima facie entitlement to summary judgment by proof that he 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]; 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]). Plaintiff submitted proof in admissible form that the claim was mailed to defendant on October 20, 1997. It is uncontroverted that defendant did not timely pay or deny the claim within the 30-day statutory period subsequent to the receipt of the claim, nor did it seek to extend that time by requesting verification (see 11 NYCRR 65.15 [g] [3]; [d] [1], now 11 NYCRR 65-3.8 [c]; 65-3.5 [a]). Accordingly, contrary to the determination of the court below, defendant is precluded from [*2]raising the defense of intoxication (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).

There is no merit to defendant’s contention that its denial of claim form dated August 7,1997, which preceded its receipt of the claim, may operate as a valid denial of no-fault benefits. The insurance regulations provide that an insurer must either pay or deny the claim “within 30 calendar days after proof of claim is received” (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]). Further, “no-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim which shall include verification of all of the relevant information requested” pursuant to the verification rules (11 NYCRR 65.15 [g] [1] [i], now 11 NYCRR 65-3.8 [a] [1]). The regulations further provide that “an insurer shall not issue a denial of claim form (NYS form NF-10) prior to its receipt of verification of all of the relevant information requested pursuant to section 65-3.5” (11 NYCRR 65-3.8 [b] [3]).

Accordingly, pursuant to the insurance regulations, defendant’s blanket general denial of claim which was issued by the defendant prior to its receipt of the plaintiff’s claim for no-fault benefits does not constitute a valid denial of no-fault benefits for said claim (see A&S Med. v Allstate Ins. Co., 196 Misc 2d 322 [App Term, 1st Dept 2003], affd 15 AD3d 170 [2005] [defendant’s untimely denial of claim cannot be deemed timely on the basis of an earlier blanket disclaimer issued directly to plaintiff’s assignor prior to plaintiff’s rendition of services and submission of claim]; cf. New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002] [insurer may not issue a denial of claim pending a verification request and plaintiff’s time to respond has not run out]).

The denial of claim form is also fatally defective since it omitted numerous items of requested information, and thus was 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]). [*3]

Accordingly, plaintiff’s motion for summary judgment is granted, and the matter is 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.
Decision Date: June 27, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (S. Jaeger, J.), entered December 15, 2003, which denied plaintiff’s motion for summary judgment.

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

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]; 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 then shifted to defendant to demonstrate a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion, defendant asserted that it has a founded belief that the incident was not an accident but a deliberate event staged in furtherance of a scheme to defraud the insurer (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]). For the reasons this court [*2]set forth in the case of A.B. Med. Servs. v Eagle Ins. Co. (3 Misc 3d 8 [2003]), which involved the same accident, same assignor and the same showing by defendant in support of its claim of fraud, plaintiff’s motion for summary judgment should be granted.
Decision Date: June 27, 2005

—[*1]

In an action to recover no-fault medical payments, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated September 22, 2004, which denied its motion for summary judgment and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiff’s motion for summary judgment and correctly granted the defendant’s cross motion for summary judgment dismissing the complaint. An insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested (see 11 NYCRR 65.15 [d], [g] [1], [7]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2002]). It is undisputed that the plaintiff’s assignor and Good Samaritan Hospital failed to respond to the defendant’s verification requests for the record containing the assignor’s post-accident blood alcohol level. Accordingly, the period within which the defendant was required to respond to the plaintiff’s claim did not begin to run, and any claim for payment was premature (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004]; cf. Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 431 [1996]). Schmidt, J.P., S. Miller, Santucci and Mastro, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (E. Spodek, J.), entered June 21, 2004, as denied their motion for summary judgment. Cross appeal by defendant from so much of the same order as denied its cross motion for summary judgment.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted and matter remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits for medical services provided their assignor, plaintiffs established their prima facie entitlement to summary judgment by evidentiary proof that they submitted statutory claim forms, 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]). Defendant insurer timely rejected the claims on the sole ground that at the time of the accident, assignor was acting in the course of his employment, mandating that plaintiffs pursue their compensation claim before the Workers’ Compensation Board (Board). Plaintiffs, alleging that the accident was not employment-related, moved for summary judgment, whereupon defendant cross-moved for summary judgment.

In our view, the insurer failed to establish the defense’s “potential merit” so as to warrant Board review of the facts (Lanpont v Savvas Cab Corp., 244 AD2d 208, 210 [1997]; see Alvarez [*2]v Prospect Hosp., 68 NY2d 320, 324 [1986]). As against plaintiffs’ proof, inter alia, assignor’s sworn statement that he was not working when the accident occurred and a sworn statement by his purported employer that assignor “was not
working on December 12, 2001″ (and necessarily, that assignor was not en route to or from work at the time of the incident [Baughman v Merchants Mut. Ins. Co., 213 AD2d 1030 (1995)]), defendant interposed only a claims adjuster’s assertion that defendant had “made the determination that the claimant was eligible for Workers’ Compensation” which in turn was based solely on an employer’s unsworn statement dated 18 months before the accident and a police accident report, offered for the first time in defendant’s reply papers below, which will not be considered by this Court (e.g. Johnston v Continental Broker-Dealer Corp., 287 AD2d 546 [2001]; Azzopardi v American Blower Corp., 192 AD2d 453 [1993]). Thus, defendant’s claim that assignor acted in the course of his employment at the time of the accident was “mere speculation” (Anarumo v Terminal Constr. Corp., 143 AD2d 616, 617 [1988]) and failed to establish any issues of fact regarding Workers’ Compensation coverage that must be resolved by the Board (see Lanpont, 244 AD2d at 210 [“Workers’ Compensation defense” successfully interposed where “(s)ufficient facts appear in the record to demonstrate the (defense’s) potential merit”]). Accordingly, the order below should be modified to grant plaintiffs summary judgment and the matter remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees as authorized by Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: June 09, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Nadelson, J.), entered on June 18, 2004, which denied its motion for summary judgment.

Order unanimously affirmed without costs.

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 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]).

In opposition to plaintiff’s motion, defendant asserted the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The Accident Reconstruction Analysis report, which was sworn to by the consultant who prepared said report, constituted admissible evidence by an expert in the field in support of defendant’s defense of a lack of causal nexus between the accident and the injuries claimed by plaintiff’s assignor (see Valentine v Grossman, 283 AD2d 571 [2001]), and 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; Mount Sinai Hosp., 263 AD2d at 18-19; Ocean Diagnostic Imaging P. C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists]; Ocean Diagnostic Imaging P. C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 132[A], 2005 NY Slip Op 50607[U] [App Term, 2d & 11th Jud Dists]). [*2]

Accordingly, since defendant demonstrated 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]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: June 09, 2005

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 (A. O’Shea, J.), entered July 7, 2004, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established its 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]; 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]). While defendant timely denied the claim, it nevertheless had to submit proof in admissible form in opposition to the motion to rebut plaintiff’s prima facie showing (A.B. Med. Servs. PLLC, 4 Misc 3d at 86).
Upon a review of the record, we find that defendant sufficiently rebutted plaintiff’s prima facie showing by raising the preserved triable issue of fact as to whether it was provided with notice of the accident within 90 days as required by the insurance regulations. Accordingly, the court below properly denied plaintiff’s motion for summary judgment (see e.g. Hackensack Univ. Med. Ctr. v New York City Tr. Auth., 10 AD3d 675 [2004]). [*2]
Decision Date: June 03, 2005

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 (S. Jaeger, J.), entered February 9, 2004, which granted plaintiff’s motion for summary judgment.

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

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider established its prima facie entitlement to summary judgment by proof that it submitted the functional equivalent of a statutory claim form setting forth the fact and amount of the loss sustained, and that payment of no-fault benefits was overdue (see
Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The nature of the fact and amount of loss, that is, the “particulars of the nature and extent of the injuries and treatment received and contemplated” (11 NYCRR 65-1.1) were sufficiently set forth to permit defendant the review to which it was entitled at the claim stage. Thus, the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Absent tolling of the statutory time, defendant’s conceded failure to deny the claim within 30 days of its receipt precluded its defenses with the exception noted below (see Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]; New York & Presbyt. Hosp. v [*2]Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). First, defendant sought to prove requests for verification via the affidavit of a “litigation specialist” who asserted no basis of personal knowledge of the facts aside from defendant’s records and who offered no proof of mailing (e.g. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Moreover, the alleged initial and follow-up verification demands, in any event, were ineffective to toll the claim determination period. All post-claim verification requests must be made within prescribed time frames, (11 NYCRR 65-3.5 [a], [b]; 65-3.6 [b]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). Defendant omitted any proof of its allegedly timely initial verification request and its purported proof of a subsequent, follow-up request, however marked a “second notice,” was therefore of no significance. Defendant’s failure to establish compliance with the verification rules justified the court’s conclusion that the 30-day claim determination period expired.

Whatever the merits of defense counsel’s calculations of the proper fee schedule, the issue is precluded by the untimely denial (see Westchester Med. Ctr. v American Tr. Ins. Co., ___ AD3d ___, 2005 NY Slip Op 03046; 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]; 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]). Also precluded are defendant’s challenge to the treatment’s medical necessity, however well-established by a peer review report in admissible form (e.g. A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists]), and the alleged defects in the proof of assignment (New
York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2004]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U], supra).

However, the preclusion sanction does not apply to a defense that a claim is based on treatment for medical conditions unrelated to a covered traffic incident (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and upon our review of the peer review report, submitted below in admissible form, we are persuaded that the report sufficed to create a triable issue as to whether the condition for which the herein medical services were provided arose from a covered insured incident (id.; see also Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra).
Decision Date: June 03, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (A. Gazzara, J.), entered October 21, 2003, granting plaintiff’s cross motion for summary judgment.

Order unanimously reversed with $10 costs and plaintiff’s cross motion for summary judgment denied.

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 loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is uncontroverted that defendant did not deny plaintiff’s claim within the statutory period. Consequently, defendant is precluded from raising most defenses (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including any deficiency in the assignments (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. & Sur. Co., 233 AD2d 433 [1996]; A.B. Med. [*2]Servs. PLLC. v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Moreover, defendant’s requests for examinations under oath did not toll the 30-day claim determination period inasmuch as the applicable insurance regulations did not contain a provision entitling an insurer to an examination under oath (see 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]).

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp, 90 NY2d at 199). Consequently, a triable issue of fact exists as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, plaintiff’s cross motion for summary judgment is denied.
Decision Date: June 03, 2005

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, Queens County (J. Golia, J.), entered January 12, 2004, as denied its motion for summary judgment. Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $4,117.18 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, 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 facts and the amount 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]). Inasmuch as defendant failed to pay or deny claims in the sums of $1,800, $1,588.44 and $728.74 within the 30-day statutory period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses with respect thereto (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 [*2]NY2d 274, 282 [1997]).
The remaining claims were timely denied on the ground that the bills submitted were “not properly no-fault rated” and that the fees charged were in excess of the Workers’ Compensation fee schedule. Such defenses raise triable issues of fact warranting the denial of plaintiff’s motion for summary judgment as to said claims.

Accordingly, partial summary is granted plaintiff in the sum of $4,117.18 and the matter is remanded to the court below for a calculation of the statutory interest and an
assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: June 01, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Kings County (S. Krauss, J.), entered on April 8, 2004, which denied their motion for summary judgment and dismissed the complaint with leave to replead.

Order reversed without costs, complaint reinstated, plaintiffs’ 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; entry of judgment stayed for 45 days from the date of the order entered hereon, with leave to defendant to renew upon submission of proper papers within said period.

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs established a prima facie entitlement to summary judgment by proof that they submitted their 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]). While the claims of the three plaintiffs were pleaded under one cause of action in the [*2]complaint, the specific claims and amounts sought to be recovered by the individual plaintiffs were stated separately as to each of the plaintiffs. Under the circumstances, and in the absence of any showing of prejudice to defendant, we find there was no basis to deny the plaintiffs’ motion for summary judgment and to dismiss the complaint with leave to replead (see CPLR 3014).

Defendant’s denial of plaintiffs’ claims, in essence, asserted misrepresentation and/or fraud by plaintiffs and the plaintiffs’ assignor. Since the defendant failed to pay or deny the claim within the 30-day statutory 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]), including its defense of provider fraud (id. at 285; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Defendant, however, is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). In opposition to plaintiffs’ motion for summary judgment, and in support of its defense of fraud, defendant submitted the affirmation of its attorney who lacked personal knowledge of the investigation (Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, supra), and unsworn investigative reports which did not constitute competent proof in admissible form (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). While hearsay evidence may be admissible in opposing a motion for summary judgment, there must be an acceptable excuse for failure to tender the proof in admissible form (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]), which defendant has failed to proffer. Accordingly, plaintiffs’ motion for summary judgment should have been granted.

Inasmuch as the issues raised herein involve an alleged staged collision in furtherance of an insurance fraud scheme, and in consideration of the strong public policy to stem the perpetration of no-fault insurance fraud underlying the revisions to the insurance regulations (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861-862 [2003]), defendant is granted leave to renew upon
submission of proper papers in opposition to plaintiffs’ motion for summary judgment (see CPLR 2221), 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 [1997]).

Accordingly, the complaint is reinstated, plaintiffs’ 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; entry of judgment is stayed for 45 days from the date of the order entered hereon, with leave to defendant to renew upon submission of proper papers within said period.

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

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to modify the order and deny plaintiffs’ motion for summary judgment in the following memorandum:

Contrary to the holding of the majority, I find that the papers submitted by the defendant in opposition to the plaintiffs’ motion for summary judgment were sufficient to raise an issue of fact as to whether the defense of fraud was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

For the reasons stated in my dissent in Ocean Diagnostic Imaging v Lancer Ins. Co. (6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]), I find that the unsworn reports when submitted in opposition to a motion for summary judgment and accompanied by an affidavit or affirmation of an attorney which makes reference to such report, are sufficient for the purpose of raising a triable issue of fact. This Court must, when deciding a motion for summary judgment, interpret the evidence in the light most favorable to the non-movant (see Weiss v Garfield, 21 AD2d 156 [1964]). This is especially true where there is an allegation of fraud.

Accordingly, I would modify the order of the lower court and would deny the plaintiffs’ motion for summary judgment.
Decision Date: May 23, 2005