Ocean Diagnostic Imaging P.C. v Commerce Ins. Co.

[*1] Ocean Diagnostic Imaging P.C. v Commerce Ins. Co. 2005 NYSlipOp 50642(U) Decided on April 29, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 29, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 29, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., RIOS and BELEN, JJ.
2003-1789 K C

Ocean Diagnostic Imaging P.C. a/a/o Charles Brown, Appellant,

against

Commerce Insurance Company, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered October 28, 2003, which denied its motion for summary judgment.

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

In this action to recover $2,670.40 in assigned first-party no-fault benefits for medical treatment rendered its assignor, plaintiff established its prima facie entitlement to summary judgment by its proof that it submitted claims 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]). Defendant's conceded failure to pay or deny the claim within 30 days of receipt precluded defendant from interposing most defenses (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 93 [App Term, 2d & 11th Jud Dists 2004]).

The so-called "delay letter" cannot be deemed to toll the claim determination period since it sought no verification and, in any event, issued after the period for verification had expired [*2](defendant does not deny it received the claim on January 7, 2002 as proved by plaintiff's postal delivery receipt) (id. at 94; 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]). This court has repeatedly held that a letter "which merely informs a claimant that a decision on the claim is delayed pending an investigation and which does not specify a particular form of verification and the person or entity from whom the verification is sought, may not be relied upon to toll the 30-day claim determination period" (A.B. Med. Servs. PLLC v Country-Wide Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50255[U] [App Term, 2d & 11th Jud Dists]; see e.g. Melbourne Med., P.C., 4 Misc 3d at 94).

We further note that, while examinations under oath (EUOs) are available to an insurer under the revised regulations (effective April 5, 2002) which provide for them pursuant to the verification protocols, they are authorized only as to claims filed after that date and pursuant to a revised mandatory endorsement contained in new or renewed policies issued on or after April 5, 2002 (e.g. S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). Thus, under New York's No-Fault Law, defendant's EUO requests, which issued for claims filed before the revised regulations' effective date (e.g. Capio Med., P.C. v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; S&M Supply Inc. v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 128[A], 2004 NY Slip Op 51250[U] [App Term, 9th & 10th Jud Dists]) were ineffective to toll the claim determination period.

Defendant seeks to apply Massachusetts' no-fault EUO provisions which, defendant urges, allow for EUOs under the facts herein and also provide that an insured's failure to cooperate with such requests would void defendant's obligation to pay no-fault benefits. Defendant also invokes Massachusetts law insofar as it provides that an insured's fraudulent application for an insurance policy is a basis for retroactive cancellation of the policy, which cancellation would, under New York's No-Fault Law, implicate coverage and constitute an exception to the preclusion rule. According to defendant, claimant, holding a Florida driver's license and Massachusetts automobile registration, was issued a Massachusetts policy in the expectation that he would apply for a Massachusetts driver's license within the time required by Massachusetts law. Defendant concedes that the insured failed to do so and that it did not act to terminate the policy or even investigate whether, as it now asserts, the insured at all relevant periods resided in New York and garaged the subject vehicle in New York. However, defendant's claim of a fraudulent application is presented merely in the form of conclusory assertions of fact and unsubstantiated suspicions by an attorney who lacks personal knowledge of the facts and without any supporting documentation in admissible form sufficient to create a triable issue of fraud (id.; see also Matter of Liberty Mut. Ins. Co. v Guerrier, 307 AD2d 1033 [2003]). If defendant's assertions of fact are true, that at the time of the accident, the insured was a New York domiciliary who garaged his automobile in New York, and defendant elected to issue the policy to a party licensed in Florida and to continue said policy notwithstanding the insured's failure to obtain a Massachusetts driver's license within the time required by Massachusetts [*3]
law, it should not be permitted to bypass New York's bar to retroactive cancellations (Vehicle and Traffic Law § 313) merely because the insured was involved in a nominally covered accident (cf. Matter of Integon Ins. Co. v Garcia, 281 AD2d 480 [2001]).
Decision Date: April 29, 2005