Dilon Med. Supply Corp. v State Farm Mut. Ins. Co. (2006 NY Slip Op 51344(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen Gesmer, J.), entered September 27, 2004. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see e.g. Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended claim form to defendant. However, said deficiency was cured by defendant’s acknowledgment of receipt both in its denial of claim form and in the affidavit of defendant’s employee (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff established its prima facie entitlement to summary judgment.

Inasmuch as defendant failed to timely object to the lack of a valid assignment of benefits or to make a timely request for verification of the assignment, it waived any defenses based [*2]thereon (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]).

Contrary to defendant’s contention, the letters from defendant to plaintiff, notifying plaintiff that payment was delayed pending an investigation of the circumstances of the accident as well as the patient’s eligibility for no-fault benefits, did not toll the statutorily prescribed 30-day period (11 NYCRR 65-3.5, 65-3.8 [a] [1]) within which to pay or deny the claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Accordingly, the denial was untimely and defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Defendant contends that it raised an issue of fact as to whether plaintiff’s claim was part of a fraudulent scheme involving plaintiff and wholesalers of durable medical equipment. While an insurer is not precluded from asserting a fraudulent scheme involving a staged accident, i.e., a lack of coverage defense premised on the fact or founded belief that the alleged injury did not arise out of an insured incident (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s claim of fraud herein is premised upon an allegation of excessive billing or lack of medical necessity, and such defense is subject to the 30-day preclusion rule (see id.; Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29, supra). Accordingly, plaintiff was entitled to summary judgment and the matter is 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.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 25, 2006