Amaze Med. Supply Inc. v AIU Ins. Co.

[*1] Amaze Med. Supply Inc. v AIU Ins. Co. 2004 NY Slip Op 51629(U) Decided on December 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-439 N C

AMAZE MEDICAL SUPPLY INC. a/a/o Genie Lewis, Appellant,

against

AIU INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered January 2, 2004, denying its motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiff commenced this action to recover $2,190 in first-party no-fault benefits for medical supplies it provided to its assignor pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiff moved for summary judgment, which motion was denied.

Plaintiff 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]; 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]). Consequently, the burden shifted to defendant to raise a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986])

It is uncontroverted that defendant's May 2002 denial was untimely. The court below correctly noted that defendant was not thereby precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the investigator's affidavit set forth sufficient facts to demonstrate that defendant possessed 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]), thus raising an issue of fact warranting denial of plaintiff's motion for summary judgment (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 3 [*2]Misc 3d 139[A], 2004 NY Slip Op 50575[U] [App Term, 9th & 10th Jud Dists]).
Decision Date: December 15, 2004