Opinion
2003-799 NC.
Decided September 17, 2004.
Appeal by defendant from an order of the District Court, Nassau County (A. Cooper, Sr., J.), dated March 5, 2003, denying its cross motion for summary judgment and granting plaintiff's motion for summary judgment.
Order unanimously modified by providing that plaintiffs' motion for summary judgment is denied; as so modified, affirmed without costs.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
In this action to recover assigned first-party no-fault benefits, plaintiffs' affidavit in support of their motion for summary judgment set forth only that the affiant is a "practice and billing manager" and an "officer" of "plaintiff" notwithstanding that there are three named plaintiffs each asserting independent standing as an insured's assignee. As we cannot assume that the affiant acted on behalf of one particular plaintiff or on behalf of all of the plaintiffs ( A.B. Med. Servs. v. Allstate Ins. Co., NYLJ, Mar. 18, 2004 [App Term, 9th 10th Jud Dists]), such an affidavit is "insufficient to establish that plaintiffs provided defendant with properly completed claim forms" ( id.). We further note that as to D.A.V. Chiropractic P.C., the record before us contains no assignment of benefits form on plaintiff's behalf, an additional reason for the motion's denial as to this plaintiff. Accordingly, plaintiff's motion for summary judgment should have been denied upon plaintiffs' failure to make out a prima facie case.
With respect to defendant's cross motion for summary judgment, upon the papers presented, defendant failed to establish its entitlement to judgment dismissing the action as a matter of law. Defendant's claim that the assignors failed to cooperate with its requests to examine them under oath is without merit because when plaintiffs filed their claims, there was no provision in the insurance regulations for such a procedure ( compare 11 NYCRR 65.15 [d] [3]; 65.2 [a], with 11 NYCRR 65-1.1 [d]; 65-3.5 [e], eff. April 5, 2002; e.g. King's Med. Supply Inc v. Progressive Ins., 3 Misc 3d 126 [A], 2004 NY Slip Op 501312 [U] [App Term, 2d 11th Jud Dists]). Defendant's argument that its policy provisions require an insured's cooperation with an examination under oath is likewise misplaced in that the mandatory no-fault endorsement "cannot be qualified by . . . conditions . . . of the liability portions of the policy" ( Utica Mut. Ins. Co. v. Timms, 293 AD2d 669, 670).
However, for the reasons set forth in Ocean Diagnostic Imaging P.C. v. State Farm Mut. Auto. Ins. Co. (No. 2003-1289 N C decided herewith), involving the same assignors and the same traffic incident, we find defendant's claim, that the underlying traffic incident was staged pursuant to a scheme to defraud, to be supported by sufficient factual allegations in admissible form to require a trial thereon, albeit insufficiently established to warrant accelerated judgment in defendant's favor.