A. M. Med. Servs., P.C. v AIU Ins. Co. (2004 NY Slip Op 51084(U))

District Court of Nassau County, Third District

1587/04

Alden Banniettis, Esq., attorney for plaintiff; Samuel K. Rubin, attorney for defendant.

Randy Sue Marber, J.

Plaintiff assignee moves for an order pursuant to CPLR 3212, awarding summary judgment in its favor. The defendant opposes the plaintiff’s motion.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [NY 1986]; Winegard v. New York University Medical Center, 64 NY2d 851 [NY 1985]) and even in the absence of opposing papers. A motion for summary judgment shall be supported by an “affidavit by a person having personal knowledge of the facts”, shall recite all the material facts and it shall show that there is no defense to the cause of action or that the defenses have no merit (CPLR 3212[b]). If the moving party meets his burden, the burden then shifts to the non-moving party to allege such evidentiary facts that raise a genuine and material controversy as to the issue(s) before the Court. Where the opposing party fails to meet his burden and the Court finds no triable issues, the motion will be granted (Iandoli v. Lange, 35 AD2d 793 [NYAD 1st Dept 1970]). Where the Court determines that a triable issue of fact exists, denial of the motion is the proper course of action (Moskowitz v. Garlock, 23 AD2d 943 [NYAD3d Dept 1965]). [*2]

“A plaintiff establishes a prima facie case … by showing … that insurance coverage existed; that a facially valid claim was presented; and that the claim was not timely denied” (Vinings Spinal Diagnostic, P.C. v. Liberty Mut. Ins. Co., 186 Misc 2d 287, 291 [NY Dist Ct Nassau 2000]). Plaintiff’s proof upon its instant motion consists of an affirmation of counsel and an unverified complaint (both having no probative value as to the relevant facts the Court is searching). It is also supported by a short affidavit of “Ernest Horowitz MD”, who asserts that he is an officer of the plaintiff/assignee. In his affidavit, he declares that the “assertions in his counsel’s affirmation are true and correct”. He states that his knowledge of the facts comes from his “business records, maintained as a matter of practice, by [him], in [his] practice”. The Court does not accept the attempted incorporation by reference by affiant Horowitz (whose burden it is to prove relevant facts upon personal knowledge) of factual allegations contained in plaintiff’s counsel’s affirmation where counsel’s allegations are based upon counsel’s “interview of (unnamed) corporate affiants and defendant’s business records … “. Horowitz’s affidavit does not show upon first-hand knowledge the dates each of the plaintiff’s six purported claim forms were sent to or received by defendant. Although plaintiff’s application contains proofs of six mailings of something, Dr. Horowitz’s affidavit does not prove what was mailed and that same were mailed by him. Dr. Horowitz does not state that no payments have been made by the Defendant within thirty days of the submission of those bills … nor does he show that the defendant did not properly seek additional verification. The Court notes that the plaintiff has not demonstrated the untimeliness of the defendant’s denial. Although the affiant indicates that his file contains certain documents, the affirmation fails to make specific reference to any pertinent exhibits which it may have derived from his file. Dr. Horowitz appears to be a complete “stranger” to the treatment and claim submission in this matter.

Although not pertinent to the Court’s above determination, the Court notes that the lateness of a denial or the absence of a required denial does not prohibit the insurer from raising the defense of lack of coverage based upon the fact or founded belief that the alleged injury did not arise out of an insured incident; in this case an alleged fraud on the part of the assignor (Metro Medical Diagnostics, PC v. Eagle Insurance Co., 293 AD2d 751 [NYAD 2d Dept 751, 2002]; Valley Psychological PC v. Liberty Mutual Insurance Co., 195 Misc 2d 540 [City Ct, Albany 2002]). “The Court of Appeals did not intend the issue of fraud to escape the notice of the court simply because of a late denial” (Valley Psychological PC v. Liberty Mutual Insurance Co., supra at 542). Although there is no application presently before the Court to amend the answer, the unpled defense of fraud is available to a defendant in resisting plaintiff’s summary judgment motion (Rizzi v. Sussman, 9 AD2d 961 [NYAD 2d Dept 1959]).

In addition, the No-Fault Verification of Treatment furnished by plaintiff’s counsel to the Court differs from what was apparently sent to the defendant upon submission of the claim. Furthermore, any deficiencies in the moving papers cannot be remedied on reply as attempted herein. [*3]

Plaintiff’s instant motion seeking summary judgment in its favor is, in all respects, denied. Defendant is awarded costs on this motion.

Dated: ____________

ENTER:

____________________________________

Randy Sue Marber, District Court Judge

cc: Alden Banniettis, Esq.

Samuel K. Rubin, Esq.