Opinion
200460 NC
Decided April 13, 2005.
Appeal by plaintiff from so much of an order of the District Court, Nassau County (J. Asarch, J.), dated October 1, 2003, as denied its motion for summary judgment and cross appeal by defendant from so much of the same order as denied its cross motion for summary judgment.
Order unanimously affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and COVELLO, JJ.
In this action to recover first-party no-fault benefits for medical services rendered to its assignors, 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]). Inasmuch as 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 defendant's denial 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.; Zuckerman v. City of New York, 49 NY2d 557), plaintiff's motion for summary judgment was properly denied. The denial of defendant's cross motion seeking summary judgment was also correct, inasmuch as the evidence which defendant proffered was insufficient to establish, as a matter of law, that "the alleged injur[ies] do not arise out of an insured incident" ( Central Gen. Hosp., 90 NY2d at 199; Zuckerman v. City of New York, 49 NY2d 557, supra).