Opinion
2005-707 K C.
Decided March 2, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered March 22, 2005. The order, insofar as appealed from as limited by plaintiff's brief, denied plaintiff's motion for summary judgment.
Order, insofar as appealed from, affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ.
Plaintiff commenced this action to recover $2,539.30 in first-party no-fault benefits for medical supplies furnished to its assignor. Thereafter, plaintiff moved for summary judgment. In an order entered March 22, 2005, insofar as appealed from, the court below denied plaintiff's motion.
The plaintiff's moving papers were deficient concerning proof of its submission of its three claim forms to defendants. Such deficiency was cured, however, only as to the $835.45 claim by defendants' annexation to their opposition papers of the delay letters which specifically state that defendants received the $835.45 claim as early as August 2003 ( see e.g. A.B. Med. Servs. PLLC v. Prudential Prop. Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d 11th Jud Dists 2005]), and the denial of claim form, dated June 2004, which specifically states that defendants received the $835.45 claim in August 2003. Since defendants merely acknowledged receipt of the claims for $680.85 and $1,023 without specifying any date therefor, as to same, plaintiff failed to make out a prima facie case that payment was overdue.
Contrary to defendants' contention, the letters they allegedly sent to plaintiff informing it that its $835.45 claim was being investigated, do not constitute proper requests for verification and, therefore, did not toll the 30-day claim determination period as to said claim ( see Melbourne Med., P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d 11th Jud Dists 2004]; Ocean Diagnostic Imaging P.C. v. Nationwide Mut. Ins. Co., 4 Misc 3d 142 [A], 2004 NY Slip Op 51041[U] [App Term, 2d 11th Jud Dists]). Having failed to timely pay or deny the $835.45 claim, defendants are precluded from raising most defenses with respect thereto ( see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 NY2d 274; Melbourne Med., P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92, supra).
Defendants, however, also asserted that "there was a fraudulent scheme in the happening of the accident," a defense which survives preclusion ( see Matter of Metro Med. Diagnostics v. Eagle Ins. Co., 293 AD2d 751). We find that defendants' papers sufficiently demonstrate defendants' "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). Consequently, defendants demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage ( see id.; Zuckerman v. City of New York, 49 NY2d 557), and, thus, the court below also properly denied plaintiff's motion for summary judgment as to the $835.45 claim.
Pesce, P.J., Weston Patterson and Belen, JJ., concur.