Opinion
2004-1770 NC.
Decided October 20, 2005.
Appeal from an order of the District Court of Nassau County, First District (Francis D. Ricigliano, J.), entered October 1, 2004. The order, insofar as appealed from, granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment.
Order unanimously modified by denying plaintiff's motion for summary judgment; as so modified, affirmed with $10 costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established its prima facie entitlement to summary judgment by proof that it submitted a claim, 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; Damadian MRI in Elmhurst v. Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th 10th Jud Dists]). Inasmuch as defendant herein failed to pay or deny the claim 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). Defendant was not, however, precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim ( see Matter of Metro Med. Diagnostics v. Eagle Ins. Co., 293 AD2d 751). Contrary to the finding of the court below, the affidavit of defendant's special investigator, which, inter alia, revealed numerous discrepancies in the examinations under oath of plaintiff's assignor and defendant's insured as to the circumstances surrounding the accident, was sufficient to demonstrate that said defense 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 195, 199). Accordingly, since defendant raised a triable issue of fact as to whether there was a lack of coverage ( see Zuckerman v. City of New York, 49 NY2d 557), the court below erred in granting plaintiff's motion for summary judgment.