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 51432(U) Decided on November 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-94 N C

A.B. MEDICAL SERVICES PLLC, D.A.V. CHIROPRACTIC P.C. DANIEL KIM'S ACUPUNCTURE P.C., SOMUN ACUPUNCTURE P.C. SQUARE SYNAGOGUE TRANSPORTATION INC., a/a/o YURIY OZEROV, MARLEN BELYAVSKY and NATHAN SHLYAKH, Appellants,

against

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from so much of an order of the District Court, Nassau County (S. Pardes, J.), entered November 17, 2003, as denied their motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for medical services rendered to their assignor, plaintiffs health care providers established a prima facie entitlement to summary judgment by proof that they submitted the statutory claim form, setting forth the fact and the amount of the loss sustained (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]; 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]). Inasmuch as 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 [*2]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 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.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiffs' motion for summary judgment was properly denied.

Plaintiffs' remaining contentions lack merit.
Decision Date: November 19, 2004