Opinion
2004462NC
Decided February 17, 2005.
Appeal by plaintiff from an order of the District Court, Nassau County (J. Spinola, J.), entered December 10, 2003, which denied its motion for summary judgment.
Order unanimously affirmed with $10 costs.
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a 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]). Since defendant failed to pay or deny the claim within the 30-day statutory period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses ( see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 NY2d 274, 282).
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, 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage ( see id.; see generally Zuckerman v. City of New York, 49 NY2d 557), plaintiff's motion for summary judgment was properly denied.