Opinion
2008-1155 N C.
Decided March 19, 2009.
Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered April 14, 2008. The order denied plaintiff's motion for summary judgment.
Order affirmed without costs.
PRESENT: TANENBAUM, J.P., MOLIA and LaCAVA, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff's motion, arguing that it had a founded belief that the subject incident was a staged loss. District Court denied plaintiff's motion, finding that plaintiff failed to prove its prima facie entitlement to summary judgment because, inter alia, the supporting affidavit did not lay a proper foundation for the admissibility of plaintiff's business records. The instant appeal by plaintiff ensued.
Plaintiff established its prima facie entitlement to summary judgment by proving submission of statutory claim forms, 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 ). We note that the affidavit submitted by plaintiff established 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]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. , 14 Misc 3d 44 [App Term, 2d 11th Jud Dists 2006]).
In opposition to plaintiff's motion, defendant asserted that the alleged injuries did not arise out of an insured incident ( see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. , 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th 10th Jud Dists 2005]). We find that defendant's submissions were sufficient to demonstrate that defendant possessed a "founded belief that the alleged injur[ies] do[] not arise out of an insured incident" ( see Central Gen. Hosp., 90 NY2d at 199). Accordingly, the order denying plaintiff's motion for summary judgment is affirmed, albeit on other grounds.
Tanenbaum, J.P., Molia and LaCava, JJ., concur.