Opinion
2004-1541 KC.
Decided March 7, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered September 27, 2004. The order denied plaintiff's motion for summary judgment.
Order affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amounts of the losses 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; Amaze Med. Supply v. Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701[U] [App Term, 2d 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period ( 11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses ( see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 NY2d 274, 282). Defendant's requests for examinations under oath (EUOs) did not toll the 30-day claim determination period since its papers in opposition to plaintiff's motion for summary judgment did not demonstrate that the insurance policy in effect when the EUOs were sought contained an endorsement authorizing such verification ( see Capio Med., P.C. v. Progressive Cas. Ins. Co., 7 Misc 3d 129 [A], 2005 NY Slip Op 50526[U] [App Term, 2d 11th Jud Dists]; Star Med. Servs. P.C. v. Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d 11th Jud Dists 2004]). However, defendant is not 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).
The affidavit submitted by defendant's special investigator was sufficient to demonstrate that the 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; GPM Chiropractic, P.C. v. State Farm Mut. Ins. Co., 7 Misc 3d 138 [A], 2005 NY Slip Op 50861[U] [App Term, 2d 11th Jud Dists]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage ( see Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195, supra; Zuckerman v. City of New York, 49 NY2d 557), plaintiff's motion for summary judgment was properly denied.
Pesce, P.J., and Weston Patterson, J., concur.
Golia, J., concurs in a separate memorandum.
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.