A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co.

[*1] A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. 2004 NY Slip Op 51104(U) Decided on September 29, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 29, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
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A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. DANIEL KIM'S ACUPUNCTURE P.C. S & M SUPPLY INC. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o Sergey Mihnuk Zemfira Alieva Adil Mezhlumov Appellants,

against

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County

(D. Silber, J.), entered on September 19, 2003, as denied their cross motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

Plaintiffs health care providers established their prima facie entitlement to summary judgment for assigned no-fault benefits by the submission of evidentiary proof that the statutory claims forms were mailed to defendant and that defendant failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; 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]). Moreover, defendant's requests for examinations under oath did not toll the 30-day period in the [*2]absence of provisions in the applicable insurance regulations requiring a claimant to submit to examinations under oath (see Melbourne Med., P.C. v Utica Mut. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24221 [U] [App Term, 2d & 11th Jud Dists]; S & M Supply v Nationwide Mut. Ins. Co., 3 Misc 3d 138 [A], 2004 NY Slip Op 50557 [U] [App Term, 2d & 11th Jud Dists]; 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 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. 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.), plaintiffs' motion for summary judgment was properly denied.
Decision Date: September 29, 2004