AT Med. P.C. v Utica Mut. Ins. Co.

[*1] AT Med. P.C. v Utica Mut. Ins. Co. 2006 NY Slip Op 50739(U) [11 Misc 3d 142(A)] Decided on April 14, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 14, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2005-699 K C.

AT Medical P.C. Aao Oleg Vayman, Respondents,

against

Utica Mutual Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered on March 3, 2005. The order granted plaintiff's motion for summary judgment.

Order reversed without costs and plaintiff's motion for summary judgment denied.

In an action to recover assigned first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof that it submitted the 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 [*2]
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]). Any deficiencies in plaintiff's moving papers concerning proof of its submission of the claims were cured by defendant's denial of claim forms attached to plaintiff's moving papers, which adequately established that plaintiff sent, and that defendant received, the claims (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists]; Ultra DiagnosticsImaging v Liberty Mut. Ins. Co., 9 Misc 3d 97 [App Term, 9th & 10th Jud Dists 2005]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]).

Defendant's denials of plaintiff's claims were not timely made within the 30-day statutory period within which it was required to pay or deny the claims (11 NYCRR 65-3.8 [c]). While an insurer's timely verification requests and compliance with the follow-up verification requirements may extend the 30-day period (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]), defendant's contention that its request that plaintiff's assignor execute and return the transcript of his examination under oath (EUO) tolled the 30-day period is without merit since the insurance regulations in effect at the time the claims were submitted did not even require the claimant to appear for an EUO (see Ocean Diagnostic Imaging P.C. v State
Farm Mut. Auto. Ins. Co., 5 Misc 3d 53 [App Term, 9th & 10th Jud Dists 2004]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). In any event, even assuming that a request that a claimant execute and return an EUO transcript would constitute a valid basis for tolling the 30-day claim determination period, defendant herein failed to proffer proper proof of having mailed said request (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Defendant also opposed the motion on the ground of fraud. To the extent that defendant's claim of fraud is, in essence, premised on fraudulent billing or excessive medical treatment, these are defenses subject to the 30-day preclusion remedy (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29, supra; Fair Price Med. Supply Corp. v Travelers Indem. Co., 9 Misc 3d 76 [App Term, 2d & 11th Jud Dists 2005]; Melbourne Med., P. C. v Utica Mut. Ins. Co., 4 Misc 3d 92, supra).

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite its untimely denial of
the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that defendant's submissions were 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 at 199).

Consequently, plaintiff's motion for summary judgment should have been denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 14, 2006