Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51032(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (H. Miller, J.), entered August 18, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.
Plaintiff commenced this action to recover $2,637.07 in first-party no-fault benefits for medical services it rendered to its assignor pursuant to Insurance Law §
5101 et seq. Thereafter, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Both motions were denied by order entered August 18, 2003.

Contrary to the determination of the court below, the affidavit of plaintiff’s billing manager need not have stated that he had personal knowledge that the services were rendered to the assignor. Said affidavit need only have established his duties as the billing manager sufficient to support the inference that the attached exhibits were sufficiently accurate and trustworthy to merit their admission into evidence pursuant to the business record exception of the hearsay rule (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]). The affidavit herein was clearly adequate and laid a proper foundation for the court to consider the exhibits attached thereto pursuant to CPLR 4518 (a), and said exhibits established that the services were rendered to the assignor.

A review of the record indicates that plaintiff established its prima facie entitlement [*2]to summary judgment by showing that it submitted a properly completed proof of claim and the amount of the loss (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701 [U] [App Term, 2d & 11th Jud Dists]). Defendant, however, failed to deny the claim within the statutory 30-day claim determination period (11 NYCRR 65.15 [g] [3]), and its requests for examinations under oath did not toll the 30-day period inasmuch as the insurance regulation in effect at the time plaintiff submitted its claim did not contain a provision requiring a claimant to appear for an examination under oath (see A.B. Med. Servs. PLLC v Eagle Ins. Co., 3 Misc 3d 8 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392 [U] [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). We note that the cases of Han-Ki Lee v American Transit Ins. Co. (304 AD2d 713 [2003]) and Galante v State Farm Ins. Co. (249 AD2d 506 [1998]) are distinguishable on their facts.

An untimely denial, however, did not preclude defendant from asserting the defense that the collision was a staged event in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The investigator’s affidavit set forth sufficient facts to demonstrate that defendant
possessed 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 [1997]).
As a result, because defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.), plaintiff’s motion for summary
judgment was properly denied (see Ocean Diagnostic Imaging, P.C. v State Farm Mut. Auto. Ins. Co., (No. 2003-1289 NC, decided herewith and A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., (No. 2003-799 NC, decided herewith).
Decision Date: September 17, 2004