Opinion
2008-354 N C.
Decided on February 24, 2009.
Appeal from an order of the District Court of Nassau County, Third District (Edmund M. Dane, J.), entered December 12, 2007. The order denied plaintiffs' motion for summary judgment.
Order affirmed without costs.
PRESENT: RUDOLPH, P.J., TANENBAUM and LaCAVA, JJ.
In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion on the grounds of lack of coverage, failure by plaintiffs' assignors to appear for independent medical examinations and lack of medical necessity. The court below denied plaintiffs' motion for summary judgment, finding that although plaintiffs established their prima facie entitlement to summary judgment, defendant raised triable issues of fact. The instant appeal by plaintiffs ensued.
A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, 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 ). A review of the record indicates that the affidavit submitted by plaintiffs' billing manager sufficed to establish that the annexed claim forms constituted evidence in admissible form ( see CPLR 4518; Fortune Med., P.C. v Allstate Ins. Co. , 14 Misc 3d 136 [A], 2007 NY Slip Op 50243[U] [App Term, 9th 10th Jud Dists 2007]). Consequently, the record establishes plaintiffs' prima facie entitlement to summary judgment.
In opposition to plaintiff's motion for summary judgment, defendant asserted, inter alia, that the alleged injuries do not arise out of an insured incident ( see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201). In support of said defense, defendant submitted the affidavit of its litigation examiner, the police report, the affidavit of its investigator, and transcripts of statements made by the assignors and the insured, which demonstrated that defendant possessed a "founded belief that the alleged injur[ies] do[] not arise out of an insured incident" ( Central Gen. Hosp. at 199).
Accordingly, the denial of plaintiffs' motion for summary judgment is affirmed, albeit on other grounds. In light of the foregoing, we reach no other issue.
Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.