SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

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

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

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

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

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

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

Judgment affirmed without costs.

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

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

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

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

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

Angiolillo, J., taking no part.
Decision Date: June 30, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (M. Massell, J.), dated May 19, 2003, as denied its motion for summary judgment.

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

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

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

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

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

With regard to the defendant’s denial of benefits based on alleged fraudulent conduct, it is well settled that if a collision is caused in furtherance of an insurance fraud scheme, it would not be a covered accident (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; see also State Farm Mut. Auto Ins. Co. v Laguerre, 305 AD2d 490 [2003]), and defendant is not precluded from asserting this defense despite an untimely denial of the claim (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]; Matter of Metro [*3]Med. Diagnostics v Eagle Ins. Co., 293 AD2d at
752). The defendant’s submissions in support of its allegations of fraud, consisting of an affidavit of an attorney who had no personal knowledge of the facts, and the unsworn letter of its investigator with the Special Investigative Unit, do not constitute evidentiary proof in admissible form (Rue v Stokes, 191 AD2d 245 [1993]), and consequently fail to raise triable issues of fact. Accordingly, plaintiff’s motion for summary judgment should have been granted, and the matter should be remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: June 30, 2004

—[*1]

In an action to recover no-fault medical payments under certain insurance contracts, the defendant appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Franco, J.), dated July 29, 2003, as granted that branch of the plaintiffs’ motion which was for summary judgment on the second, third, and fourth causes of action, and (2) from a judgment of the same court, entered August 21, 2003, which, upon the order, is in favor of the plaintiffs St. Luke’s Roosevelt Hospital, New York and Presbyterian Hospital, Mary Immaculate Hospital, and St. John’s Hospital-Catholic Medical Center and against it in the principal sum of $14,043.92.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho,39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been [*2]considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In support of their motion for summary judgment, the respondents submitted proof, inter alia, with respect to the second, third, and fourth causes of action, that they mailed and the appellant received the hospital facility forms for the related claims demonstrating the amounts of loss sustained, and that the appellant failed to either pay or deny each respective claim within the 30-day statutory period under Insurance Law § 5106 (a). Accordingly, the respondents established their prima facie entitlement to judgment as a matter of law on their claims, including statutory interest and an award of an attorney’s fee (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; St. Luke’s Roosevelt Hosp. v American Tr. Ins. Co., 1 AD3d 498 [2003]).

In opposition, the appellant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The affidavits submitted by the appellant failed to establish that it mailed the requests for verification of the assignments upon which the respondents’ claims were based (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Thus, the appellant’s objections to the claims on the basis of lack of proof of the assignments were without merit (see 11 NYCRR 65.15 [d]; St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718 [1994]).

Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the second, third, and fourth causes of action.

The parties’ remaining contentions either are academic or without merit. Krausman, J.P., Luciano, Cozier and Spolzino, JJ., concur.

—[*1]

In an action to recover no-fault medical payments under five insurance contracts, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Galasso, J.), dated October 23, 2003, as denied those branches of their motion which were for summary judgment on the first and fifth causes of action and granted that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action and upon, in effect, searching the record, dismissed the fifth cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action to recover payments for medical services provided by the plaintiff Hospital for Joint Diseases and correctly granted that branch of the defendant’s cross motion which was for summary judgment dismissing that cause of action. An insurer is not required to pay a claim where the policy limits have been exhausted (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004]). “[W]here, as here, an insurer has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Presbyterian Hosp. in City of N.Y. v Liberty Mut. Ins. Co., 216 AD2d 448 [1995]; see Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am., 229 AD2d 479, 480 [1996]). The evidence submitted by the defendant was [*2]sufficient to establish that the subject policy limits for personal injury protection benefits had been exhausted by prior claims. No triable issue of fact was raised by the plaintiffs in opposition to the defendant’s motion.

Moreover, the Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the fifth cause of action to recover payments for medical services provided by the New York Hospital Medical Center of Queens (hereinafter the NYHMCQ) and, in effect, upon searching the record, dismissed that cause of action. 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 [g] [1] [i]; [2] [iii]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2002]). It is undisputed that the NYHMCQ failed to respond to the defendant’s verification requests for medical records. Accordingly, the period within which the defendant was required to respond to this claim did not begin to run, and any claim for payment was premature (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., supra).

There is no merit to the argument of the NYHMCQ that the defendant’s verification requests were ineffective to toll the defendant’s time to pay or deny the claims because they were made by letter rather than by prescribed form (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., supra at 339; Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482, 483 [2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588, 590 [2002]). Ritter, J.P., Goldstein, Crane and Spolzino, JJ., concur.

—[*1]

In an action to recover no-fault benefits under an insurance contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Joseph, J.), dated July 7, 2003, as denied that branch of their motion which was for summary judgment on the first and second causes of action to recover no-fault benefits for medical services rendered by the plaintiff New York Hospital Medical Center of Queens.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the matter remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

The Supreme Court erred in denying the plaintiffs’ motion for summary judgment on the first and second causes of action on the ground that the hospital facility forms submitted by the plaintiffs lacked necessary signatures. The defendant’s failure to object to the completeness of the hospital facility forms within 10 days of receipt constituted a waiver of any defenses based thereon (see New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]; St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718, 720 [1994]). In opposition to the plaintiffs’ prima facie showing of entitlement to judgment as a matter of law (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]), the defendant failed to raise a triable issue of fact (see New York & Presbyt. Hosp. v Allstate Ins. Co., 295 AD2d 412 [2002]; cf. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). [*2]

As the plaintiffs established their entitlement to the no-fault benefits, as well as to statutory interest and attorney’s fees (see Insurance Law § 5106 [a]; 11 NYCRR 65-4.6), we remit the matter to the Supreme Court, Nassau County, to calculate the amount owed to the plaintiff for no-fault benefits, statutory interest, and attorney’s fees. S. Miller, J.P., Adams, Cozier and Rivera, JJ., concur.

[*1]

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

APPEARANCES OF COUNSEL

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

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

Memorandum.

Orders unanimously affirmed without costs.

In this action to recover $765 in first-party no-fault benefits for medical treatment provided its assignor, plaintiff established its prima facie case for summary judgment by proof it submitted properly executed statutory claim forms (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224 [1986]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant’s conceded failure to pay or reject the claim within 30 days of receipt precluded defendant from interposing most defenses (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). We cannot agree that defendant’s repeated requests of the assignor for an examination under oath (EUO) tolled the claim determination period because the insurance regulations then in effect did not provide for EUOs as a form of verification (Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co., 4 Misc 3d 142[A], 2004 NY Slip Op 51041[U] [App Term, 2d & 11th Jud Dists]; Triboro Chiropractic & Acupuncture P.L.L.C. v Kemper Auto & Home Ins. Co., 4 Misc 3d 138[A], 2004 NY Slip Op 50905[U] [App Term, 2d & 11th Jud Dists]). A new regulation, effective April 5, 2002, which explicitly provides for such [*2]verification, is inapplicable to the instant claim (see 11 NYCRR 65-3.5 [e]; Kings Med. Supply Inc. v GEICO Ins., 4 Misc 3d 138[A], 2004 NY Slip Op 50904[U] [App Term, 2d & 11th Jud Dists]). We have also rejected the argument that the absence of an EUO provision in the former verification scheme may be remedied by reference to policy provisions requiring that an insured cooperate with the insurer’s investigation of a claim, even if a clause therein explicitly provides for cooperation in that form (e.g. King’s Med. Supply v Kemper Auto & Home Ins. Co., 3 Misc 3d 131[A], 2004 NY Slip Op 50401[U] [App Term, 2d & 11th Jud Dists]). Such provisions {**4 Misc 3d at 94}may not be invoked to alter the terms of the mandatory no-fault endorsement because the “internally complete and distinct part of the insurance policy . . . cannot be qualified by . . . conditions . . . of the liability portions of the policy” (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Finally, an insurer may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30-day claim determination period (Ocean Diagnostic Imaging v Nationwide Mut. Ins. Co., supra; see also 11 NYCRR 65.15 [e] [2]; Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999, at 31, col 4 [App Term, 9th & 10th Jud Dists] [letter informing claimant that a peer review was to be conducted is not a proper verification request]).

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

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

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

Order unanimously affirmed with $10 costs.

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

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

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

(B. Bayne, J.), entered April 7, 2003, as denied its motion for summary judgment.

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

Plaintiff, a medical supply house, commenced this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, it moved for summary judgment on the ground that defendant delayed more than 30 days in denying its claim, in violation of Insurance Law § 5106 (a) (see also former 11 NYCRR 65.15 [g] [3] [now 11 NYCRR 65-3.8 (c)]). Defendant cross-moved for summary judgment seeking dismissal based upon the failure of plaintiff’s assignor to submit to
examinations under oath. Both motions were denied and this appeal by plaintiff ensued.

A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by the submission of a complete proof of claim and the amount of the loss, which defendant did not pay or deny within 30 days (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [d], [g]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the instant case, within 10 days of receipt of the proof of claim (see 11 NYCRR 65.15 [*2][d] [1]) defendant sent a verification letter to plaintiff advising it that it was investigating the facts of the loss inasmuch as the policyholder had notified defendant that her vehicle had not been involved in an accident. Further letters sent to plaintiff’s assignor directed him to appear for an examination under oath (EUO) and a follow-up EUO. Plaintiff’s claim was ultimately denied based upon plaintiff’s assignor’s failure to appear for the EUOs.

Inasmuch as the insurance regulation in effect when the claim was submitted contained no provision requiring the injured person to submit to an EUO (see King’s Med. Supply Inc. v Kemper Auto & Home Ins. Co., NYLJ, Mar. 2, 2004 [App Term, 2d & 11th Jud Dists]; cf. 11 NYCRR 65-3.5 [e], eff. April 5, 2002), the time period within which defendant had to pay or deny the claim was not tolled (see King’s Med. Supply Inc. v Geico Ins., NYLJ, Mar. 23, 2004 [App Term, 2d & 11th Jud Dists]) and the denial was therefore untimely.

While generally the failure to timely deny a claim will preclude the insurer from interposing most defenses based upon the propriety of a claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]), a defense based upon lack of coverage “premised on the fact or founded belief that the alleged injury does not arise out of an insured incident,” will not be precluded and therefore may still be asserted by the insurer in opposition to summary judgment (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus defendant herein was not precluded from raising a defense based on lack of coverage. However, in opposition to the motion, defendant relied upon hearsay statements allegedly uttered by its insured in an attempt to establish its defense. Inasmuch as defendant did not provide an acceptable excuse for its failure to tender such evidence in admissible form, said statements were insufficient to demonstrate the existence of a material issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Maniscalco v Liro Eng’g Constr. Mgt., 305 AD2d 378, 380 [2003]; Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]).

It is further noted that defendant’s contention that the assignment executed by plaintiff’s assignor was inadequate lacks merit (see Hamilton Med. Healthcare v Travelers Ins. Co., NYLJ, Feb. 11, 2002 [App Term, 2d & 11th Jud Dists]; Skymed Med., P.C. v New York Cent. Mut. Fire Ins. Co., NYLJ, Jan. 28, 2002 [App Term, 2d & 11th Jud Dists]; Rehab. Med. Care of N. Y. v Travelers Ins. Co., 188 Misc 2d 176 [2001]).

Accordingly, plaintiff’s motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: June 03, 2004

—[*1]

In an action to recover no-fault benefits, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), dated November 12, 2003, as granted the plaintiff’s motion for summary judgment and denied the defendant’s cross motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff met its initial burden of demonstrating its entitlement to summary judgment by establishing that the defendant did not deny or pay the two claims in question within 30 days (see Insurance Law § 5106 [a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Bonetti v Integon Natl. Ins. Co., 269 AD2d 413, 414 [2000]). The defendant thereafter failed to submit sufficient evidence in admissible form to raise a triable issue of fact regarding whether the medical treatment alleged in the first cause of action was not causally related to an insured accident and whether the underlying contract of insurance alleged in the third cause of action had been cancelled. Therefore, the plaintiff’s motion for summary judgment was properly granted.

In light of our determination, the defendant’s remaining contentions are academic. Smith, J.P., S. Miller, Crane and Rivera, JJ., concur.