—[*1]

In an action to recover no-fault insurance medical payments, the plaintiffs, Mount Sinai Hospital, as assignee of Mendel Adolph, White Plains Hospital Center, as assignee of Shehan Guiragossian, and Wyckoff Heights Medical Center, as assignee of Juan Picardo, appeal from so much of an order of the Supreme Court, Nassau County (Feinman, J.), dated March 31, 2004, as denied their motion for summary judgment on the first and third causes of action in the complaint.

Ordered that the appeal by the plaintiff White Plains Hospital Center, as assignee of Shehan Guiragossian, is dismissed, without costs or disbursements, as that plaintiff is not aggrieved by the order; and it is further,

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment on the third cause of action asserted by Wyckoff Heights Medical Center, as assignee of Juan Picardo, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff Mount Sinai Hospital, as assignee of Mendel Adolph (hereinafter Mount Sinai) demonstrated its entitlement to judgment as a matter of law on the first cause of action by [*2]establishing that it submitted the requisite documents to recover payment for medical services, but the defendant Zurich American Insurance Company (hereinafter Zurich) neither paid nor denied the claims (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). However, an insurer is not required to pay a claim where the policy limits have been exhausted (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra). In opposition to Mount Sinai’s motion, Zurich demonstrated that there were issues of fact as to whether it exhausted the coverage limits of the policy by other “no-fault” payments and whether such payments were in compliance with 11 NYCRR 65.15 (n). Accordingly, that branch of the motion which was for summary judgment on the first cause of action asserted by Mount Sinai was properly denied.

The plaintiff Wyckoff Heights Medical Center, as assignee of Juan Picardo (hereinafter Wyckoff Heights) established its entitlement to judgment as a matter of law on the third cause of action. Therefore, the Supreme Court erred in denying summary judgment to Wyckoff Heights.

Mount Sinai’s remaining contentions are without merit. Schmidt, J.P., Santucci, Crane and Skelos, JJ., concur.

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 (D. Gross, J), entered January 12, 2004, which denied its motion for summary judgment.

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

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 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]; 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]). While defendant timely denied the claims, it must nevertheless submit proof in admissible form in opposition to plaintiff’s motion to rebut plaintiff’s prima facie showing (A.B. Med. Servs. PLLC, 4 Misc 3d at 87). Since defendant’s submission, an unsworn peer review report, was not in admissible form, it was insufficient to warrant denial of plaintiff’s motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; A.B. Med. Servs. PLLC, 4 Misc 3d at 87; 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]).

Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: February 17, 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 (J. Spinola, J.), entered December 10, 2003, which denied its motion for summary judgment.

Order unanimously affirmed with $10 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]; 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 claim within the 30-day statutory period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that 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, since defendant [*2]demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; see generally Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: February 17, 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. Yeager, J.), entered February 17, 2004, which granted plaintiff’s motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover $2,670.40 in assigned 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 form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (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]). Defendant’s failure to pay or deny the claim within the prescribed 30-day period, or to demonstrate that said period had been tolled, precludes defendant from interposing most defenses to the action (Insurance Law § 5106 [a]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]; A.B. Med. Servs. v USAA Cas. Ins. Co., 6 Misc 3d 126[A] 2004 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists]; Diagnostic Rehab. Med. Servs. v Travelers Indem. Co., ___ Misc 3d ___, [*2]2004 NY Slip Op 24505 [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists]). However, defendant was not precluded from asserting the defense that the alleged injuries did not arise out of a covered accident (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; Ocean Diagnostic Imaging v Eagle Ins. Co., 5 Misc 3d 139[A], 2004 NY Slip Op 51640[U] [App Term, 9th & 10th Jud Dists]) which, if substantiated, would constitute a complete defense to the action (Matter of Government Empls. Ins. Co. v Shaulskaya, 302 AD2d 522 [2003]).

To interpose a defense of staged-accident fraud sufficient to raise a triable issue of fact, defendant must establish “the fact or 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]; Ocean Diagnostic Imaging v Eagle Ins. Co., 5 Misc 3d 139[A], 2004 NY Slip Op 51640[U], supra). The facts alleged in an entirely conclusory fashion in the attorney’s affirmation in opposition to the summary judgment motion were not based on counsel’s personal knowledge and, as unsubstantiated hearsay, were clearly of no probative value (Penny v Pembrook Mgt., 280 AD2d 590, 591 [2001]; Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists]). The bare conclusory statement in a claims representative’s affidavit, that her file review “reveal[ed] that based upon Allstate’s investigation of this claim, [assignor] engaged in staging a fraudulent accident,” merited the lower court’s determination that defendant failed to interpose a triable issue of fraud (id.; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th [*3]
Jud Dists 2004]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8, 9-10 [App Term, 9th & 10th Jud Dists 2003]).
Decision Date: February 17, 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 (J. Spinola, J.), entered December 3, 2003, which denied plaintiff’s motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $1,791.73 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]; 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 claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3]), 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, defendant was not precluded from asserting the defense that the collision was [*2]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]). It remained incumbent upon defendant, nevertheless, to submit proof in admissible form to rebut plaintiff’s prima facie showing (A.B. Med. Servs. v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). The
assertion by defendant that the accident was fraudulent was not supported by evidence [*3]
in admissible form and no excuse was forthcoming as to why defendant’s investigator’s report was unsworn (Bendik v Dybowski, 227 AD2d 228 [1996]).

Accordingly, plaintiff’s motion for summary judgment is granted 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.
Decision Date: February 17, 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 (L. Baily-Schiffman, J.), entered November 18, 2003, which denied the motion by plaintiffs A.B. Medical Services PLLC, Lvov Acupuncture P.C. and Somun Acupuncture P.C. for summary judgment.

Order unanimously reversed without costs and motion by plaintiffs A.B. Medical Services PLLC, Lvov Acupuncture P.C. and Somun Acupuncture P.C. for summary judgment granted.

Appeal by plaintiff Square Synagogue Transportation Inc. unanimously dismissed.

Inasmuch as plaintiff Square Synagogue Transportation Inc. withdrew as a party to the motion in the court below, it was not aggrieved by the subject order and its appeal must be dismissed (see CPLR 5511).

CPLR 2219 (a) requires that an order deciding a motion recite the papers upon which the motion was decided (see Matter of Dondi, 63 NY2d 331, 339 [1984]). Although the parties’ appellate briefs indicate that defendant may have served papers in opposition to the moving plaintiffs’ motion for summary judgment, the order appealed from recites that the sole papers considered by the court were the moving papers. As a result, this court’s review is limited to whether the moving papers demonstrated that as a matter of law a party was entitled to summary judgment.

The motion papers established a prima facie case in that the moving plaintiffs submitted [*2]statutory proof of claim forms to the defendant which set 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]). It was then incumbent upon the defendant to demonstrate the existence of a material issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Since it does not appear that the court received opposition papers from the defendant and as the papers before the court did not demonstrate the existence of a material issue of fact warranting the denial of the motion for summary judgment, the motion should have been granted as to the subject claims submitted by plaintiffs A.B. Medical Services PLLC, Lvov Acupuncture P.C., and Somun Acupuncture P.C. (see St. Luke’s Roosevelt Hosp. v American Tr. Ins. Co., 1 AD3d 498 [2003]).

We note that if, in fact, defendant served and filed opposing papers, defendant, if it be so advised, may seek appropriate relief in the court below.

In light of the foregoing, we do not reach any other issues.
Decision Date: February 02, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff A.B. Medical Services PLLC from an order of the Civil Court, Kings County (M. Solomon, J.), entered December 12, 2003, which denied its motion for summary judgment.

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

“A timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law . . . ” (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004] [citations omitted]). In the instant case, although defendant timely denied the subject claims submitted by A.B. Medical Services PLLC (A.B.), said denials were based upon a peer review which concluded that there was no medical necessity for the procedures performed, in that the reviewer lacked sufficient information upon which to make such a determination. [*2]However, the fact that the reviewer lacked sufficient information does not, in and of itself, demonstrate the existence of a triable issue of fact, without a showing that defendant sought to obtain such information by means of a request pursuant to the verification procedures (see 11 NYCRR 65.15 [d], now 11 NYCRR 65-3.5 [b]; 11 NYCRR 65.15 [e], now 11 NYCRR 65-3.6 [b]). Accordingly, defendant is precluded from asserting the defense of lack of medical necessity (Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 [*3]
NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Therefore, A.B.’s motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Decision Date: February 02, 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. Agate, J.), entered September 26, 2003, granting plaintiff’s motion for partial summary judgment to the extent of striking defendant’s first affirmative defense, and implicitly denying defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion is granted to the extent of awarding it partial summary judgment in the sum of $398.68 and matter remanded to the court below for a calculation of statutory interest and attorney’s fees thereon, and for all other proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover $8,205.98 in assigned first-party no-fault benefits, the court below granted plaintiff partial summary judgment, to the extent of “preclud[ing]”
defendant “from defending its denials” based on the assignor’s failure to appear for two independent medical examinations (IMEs) scheduled prior to plaintiff’s submission of the first of its statutory claim forms and, implicitly, denied defendant’s cross motion for summary judgment based on the nonappearances. However, defendant’s denials of plaintiff’s claims for $151.28, $67.40 and $180.00 in no-fault benefits were untimely (Insurance Law § 5106[a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and as defendant interposed no defense that survived the preclusive effect of the untimely denials, summary judgment should have been granted as to those claims. We note that said untimely denials precludes the defense that the benefits claimed exceeded the maximum benefits provided by the Workers’ Compensation Law (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d [*2]583, 586 [2002]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]; Mingmen Acupuncture Servs. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40244 [U] [App Term, 9th & 10th Jud Dists]).

However, for the reasons set forth in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (___ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]), the failure of plaintiff’s assignor to attend the IMEs, sought before plaintiff submitted its statutory proofs of claim, does not afford the insurer a defense to the action but rebuts the presumption of medical necessity that attaches to the claim forms (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Because plaintiff failed to support its motion with a reasonable excuse for the assignor’s failure to attend or with a showing that the IME requests were unreasonable, or in the alternative, with proof of the treatments’ medical necessity independent of the claims forms, defendant’s proof of the assignor’s nonappearance defeated plaintiff’s summary judgment motion with the exception of the claims that were untimely denied.

Accordingly, the order is modified to grant plaintiff partial summary judgment in the sum of $398.68, and the matter remanded for the calculation of statutory interest
and attorney’s fees thereon, pursuant to Insurance Law § 5106 (a), and for all further proceedings on the remainder of the claims in accordance with the determination herein.

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

Golia, J., dissents in a separate memorandum.

Golia, J. dissents and votes to deny plaintiff’s motion for partial summary judgment and to grant defendant’s cross motion for summary judgment set forth in the following memorandum:

While I agree with the majority’s grant of summary judgment with respect to the claims untimely denied, defendant’s cross motion for summary judgment should have been granted and the complaint dismissed as to the remaining claims for the reasons set forth in my dissent in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (__ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]).
Decision Date: February 02, 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, Queens County (J. Golia, J.), entered June 10, 2003, denying their motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs’ motion for summary judgment was supported by the affidavit of Janet Safir, “the practice and billing manager of each plaintiff company,” who averred that she submitted to defendant
the “claim forms and medical reports” which were annexed to the motion papers. There was, however, no allegation in the affidavit as to when the fifteen annexed claim forms were submitted. A plaintiff establishes a prima facie entitlement to summary judgment by offering evidentiary proof that it 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; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which includes verification of all relevant information requested (see 11 NYCRR 65.15 [g] [1], now 11 NYCRR [*2]65-3.8 [a] [1]). In the instant case, in order to establish that payment on the claims being sued upon was overdue, plaintiffs had to demonstrate that the requisite 30 calendar days had elapsed, which they sought to do by relying upon defendant’s letters, dated February 13, 2002, acknowledging receipt of claims, but not specifying the particular claims received. In the absence of any evidence as to when plaintiffs 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 [*3]
were overdue. Accordingly, having failed to make a prima facie showing of entitlement to judgment as a matter of law, plaintiffs’ motion for summary judgment was properly denied by the court below.
Decision Date: February 02, 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, Kings County (L. Baily-Schiffman, J.), entered on November 21, 2003, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

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

In this action to recover no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary
judgment by the submission of evidentiary proof that it mailed, and defendant received, the statutory claim forms, and that defendant failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; [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]). [*2]Moreover, defendant’s requests for examinations under oath did not toll the 30-day claim determination period since the applicable insurance regulations did not contain provisions requiring a claimant to submit to examinations under oath (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s claims specialist was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.), plaintiff’s motion for summary judgment should have been denied. Inasmuch as defendant has failed to establish entitlement to judgment as a matter of law, its cross motion for summary judgment was properly denied.

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

Golia, J., taking no part.
Decision Date: January 27, 2005