Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (2005 NYSlipOp 51745(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Nassau County (S. Jaeger, J.), entered March 31, 2004, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment, or in the alternative, for an order compelling discovery.

Order unanimously affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff health care provider established its prima facie entitlement to summary judgment by proof that it submitted a statutory claim form setting forth the fact and 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 [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]). The burden shifted to defendant to create a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant’s conceded failure to deny the claim (received September 12, 2002) until December 2, 2002, that is, well beyond the 30-day claim determination period, precluded most defenses unless defendant established a tolling of the statutory time (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]).

All post-claim independent medical examination and examination under oath verification requests must be made within prescribed time frames (11 NYCRR 65-3.5 [a], [b], [d]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]), and “[a]ny attempt by the insurer to deny the claim prior to exhausting the verification protocols is [*2]premature and of no effect” (King’s Med. Supply Inc. v Allstate Ins. Co., 7 Misc 3d 128[A], 2005 NY Slip Op 50451[U] [App Term, 9th & 10th Jud Dists]; see also New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d at 570 [2004]; King’s Med. Supply v New York Cent. Mut. Fire Ins. Co., 5 Misc 3d 136[A], 2004 NY Slip Op 51550[U] [App Term, 2d & 11th Jud Dists]). Neither of defendant’s initial examination requests were issued timely nor did they schedule the examination within the requisite 30-day period. Accordingly, defendant’s verification requests failed to toll the 30-day claim determination period.

As to the defense that the incident was staged to defraud, which defense survives the preclusion sanction (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]), as plaintiff properly argued below, none of defendant’s proof offered to establish the defense was submitted in admissible form. Defendant’s counsel alleged no basis to support an inference that the facts asserted in his statements were based on personal knowledge. Defendant’s “no-fault suit specialist” asserted merely the conclusory reference to “a possible staged fraudulent accident” based on unspecified “material misrepresentations made in the presentation of her claims,” an unsworn police accident report, and unsworn investigators’ reports, the latter of which concerned only alleged irregularities in the treatment and billing process, not the traffic incident, and thus, did not support a defense that survived the preclusion sanction (see Ocean Diagnostic Imaging P.C. v Prudential Prop. & Cas. Ins. Co., ____ Misc 3d _____, 2005 NY Slip Op ____ [App Term, 9th & 10th Jud Dists, February 17, 2005] [“Since defendant failed (timely to deny the claim) . . . it is precluded from raising
. . . its defense of provider fraud”]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). The adverse operator’s statements as recorded on the police accident report, plainly self-serving, hearsay statements, were inadmissible for the purpose offered (Hoffman v Eastern Long Is. Transp. Enter., 266 AD2d 509, 510 [1999]; see also Cover v Cohen, 61 NY2d 261, 274 [1984]; Wolf v We Transp., 274 AD2d 514 [2000]). Thus, defendant failed to establish a triable issue of fraud (see e.g. Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists] [claims examiner’s conclusory assertions as to fraud insufficient]; Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co., 6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004] [unsworn investigation reports inadmissible in opposition to summary judgment motion]; Melbourne Med. P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004] [attorney’s factual allegations, without personal knowledge of the investigation, mere unsubstantiated hearsay]; Dotzel v Allstate Ins. Co., 2003 NY Slip Op 50853[U] [App Term, 9th & 10th Jud Dists] [unsworn investigation reports inadmissible in opposition to summary judgment motion]). [*3]

In light of the foregoing, defendant’s remaining contentions need not be addressed.
Decision Date: October 21, 2005