Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co.

[*1] Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. 2006 NY Slip Op 51434(U) [12 Misc 3d 144(A)] Decided on July 18, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 18, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-566 K C.

MAGNEZIT MEDICAL CARE, P.C., A/A/O ANA ACEVEDO, JOSE ACEVEDO, LESTER HUGGINS and THE LAW OFFICE OF MOSHE D. FULD, P.C. Respondents,

against

NEW YORK CENTRAL MUTUAL FIRE INS. CO., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen Gesmer, J.), entered December 23, 2004. The order granted plaintiffs' motion for summary judgment.

Order reversed without costs and plaintiffs' motion for summary judgment denied. [*2]

In an action to recover first-party no-fault benefits for medical services rendered to its assignors, a plaintiff establishes 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Although plaintiffs, in their motion papers, did not establish proof of proper mailing of the claim forms, defendant's opposition papers, which included an affidavit of defendant's claims examiner acknowledging the dates that defendant received the subject claim forms, as well as claim denial forms indicating the dates of receipt of the claims, adequately established that plaintiffs sent, and that defendant received, the claims (see Ultra Diagnostic Imaging d/b/a/ Kings Highway Diagnostic Imaging P.C. v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC 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]).
Notwithstanding defendant's contention that verification requests were timely made, which requests would operate to toll the 30-day period within which it is required to pay or deny the claim (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8), it did not establish by competent evidence that it did so (see S & M Supply v GEICO, 3 Misc 3d 136[A], 2004 NY Slip Op 50502[U] [App Term, 2d & 11th Jud Dists]). Accordingly, having failed to pay or deny the claims within the 30-day prescribed period, defendant 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 alleged injuries were not causally related to the accident, despite the untimely denial of the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The affidavit of Dr. Ovshayev, who described herself as a principal of Magnezit Medical Care, P.C., was annexed to plaintiff's moving papers, and specifically stated that "injuries sustained by the patient were caused by multiple motor vehicle accidents." This statement was sufficient to support defendant's allegations that its defense was based upon a "founded belief that the alleged injur[ies] do[] not arise out of an insured incident" (Central Gen. Hosp., 90 NY2d at 199). Accordingly, since [*3]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 should have been denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: July 18, 2006