Opinion
2004-457 N C.
Decided February 17, 2005.
Appeal by plaintiff from an order of the District Court, Nassau County (J. Spinola, J.), entered December 3, 2003, which denied plaintiff's motion for summary judgment.
Order unanimously reversed without costs, plaintiff's motion for summary judgment granted in the principal sum of $1,791.73 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.
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]; 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 65.15 [g] [3]), it was precluded from raising most defenses ( see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 NY2d 274, 282).
However, defendant was 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). It remained incumbent upon defendant, nevertheless, to submit proof in admissible form to rebut plaintiff's prima facie showing ( A.B. Med. Servs. v. Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d 11th Jud Dists 2004]). The assertion by defendant that the accident was fraudulent was not supported by evidence in admissible form and no excuse was forthcoming as to why defendant's investigator's report was unsworn ( Bendik v. Dybowski, 227 AD2d 228).
Accordingly, plaintiff's motion for summary judgment is granted and the matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.