Careplus Med. Medical Supply Inc. v Allstate Ins. Co.

[*1] Careplus Med. Medical Supply Inc. v Allstate Ins. Co. 2005 NY Slip Op 51598(U) [9 Misc 3d 131(A)] Decided on September 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
2004-1372 K C

Careplus Medical Medical Supply Inc., a/a/o Myrna Rosado, Romana Hernandez, Latasha Holland, David St. Fort, Jaime Diaz, Yves-Anna Bernard, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Garson, J.), entered August 18, 2004. The order, insofar as appealed from, granted plaintiff's motion for summary judgment in regard to causes of action relating to assignors Romana Hernandez and Jaime Diaz.

Order, insofar as appealed from, unanimously reversed without costs and plaintiff's motion for summary judgment denied in causes of action relating to Romana Hernandez and Jaime Diaz.

In this action to recover first-party no-fault benefits for medical supplies rendered to their assignors, plaintiff established a prima facie entitlement to summary judgment with regard to the causes of action relating to assignors Romana Hernandez and Jaime Diaz by proof that it submitted claims, setting forth the fact and the amounts of the losses 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]). Inasmuch as defendant failed to pay or deny the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant was not precluded from asserting the defense that the various collisions were in furtherance of insurance fraud schemes, despite the untimely denials of the [*2]claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit of defendant's claims representative, that the insureds in both cases were involved in intentionally caused collisions, was sufficient to raise a triable issue of fact as to whether the claims of assignors Hernandez and Diaz were [*3]
fraudulent (see A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 6 Misc 3d 130[A], 2005 NY Slip Op 50076[U] [App Term, 2d & 11th Jud Dists]).
Decision Date: September 30, 2005