A.M Med. v New York Cent. Mut. Ins. Co. (2004 NY Slip Op 50298(U))

Civil Court Of The City Of New York, Queens County

Index No. 81843/02

For Plaintiff: Alden Banniettis, Esq. 2972 Avenue X, Brooklyn, NY

11235

For Defendant: Jacobson & Schwartz, Esqs, 510 Merrick Rd., POB 46,

Rockville Centre, NY 11571

Denis J. Butler, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the

review of this motion for summary judgment:

Papers Numbered

Notice of Motion and Affidavits/Affirmations Annexed________1_________

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

In an action to recover No-Fault benefits, plaintiff moves for summary judgment against defendant. Plaintiff submitted two timely and proper NF-3 claim forms on April 19, 2002 which were received by the defendant on April 29, 2002 and May 6, 2002. The plaintiff also submitted timely claim forms on April 24, 2002 and June 5, 2002, which insurer received on May 2, 2002 and June 10, 2002, respectively. Defendant issued denials for each of the aforementioned claims on June 27, 2002 and has failed to make payments on any of the bills.

Plaintiff contends that all of defendant’s denials were untimely except for the denial for the bill received on June 10, 2002. Plaintiff further argues that the denials are insufficient to raise a triable issue of fact since they are improperly based upon what the defendant labels a “Low Impact Study.”

Defendant does not dispute the timeliness of the denials, but argues that the injuries did not arise from a covered accident. Defendant contends that the accident at issue was a “Low Impact” accident and could not have caused the injuries alleged by the assignor. Defendant relies upon a report prepared by a private consultant retained by defendant which concludes that the speed of the assignor’s vehicle was “not sufficient to cause persistent injury to volunteer test [*2]subjects.” Defendant concludes that since the injuries allegedly sustained by the assignor could not have been caused by this accident, plaintiff’s claim is fraudulent and therefore did not arise from a covered accident. Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195. (despite an untimely denial, an insurer is not barred from raising as a defense that the “services rendered to treat the injuries at issue did not arise from a covered accident.”)

It is the holding of this court that the plaintiff’s motion for summary judgment is granted. Defendant submitted inadmissible reports and improperly denied plaintiff’s bills based upon a “Low Impact Study.” The case law is clear that in order to deny a claim on the theory that a particular accident was not a covered event the insurer must show that the accident was a deliberate event or a part of an insurance fraud scheme. As the evidence submitted by the defendant fails to establish that the accident was a deliberate event or part of an insurance fraud scheme the defendant’s claim that the accident was not a covered event is without merit.

The defendant, in its affirmation in opposition, merely relies on an affidavit by its claims adjuster dated January 21, 2004, wherein such adjuster asserts that the claims were timely denied based upon the “Low Impact Study” conducted by FTI/SEA Consulting. The affidavit fails to state whether the adjuster had actual knowledge of the “Low Impact Study”, whether she is an accident reconstruction expert or how she came to the conclusion that the injuries could not be related to the motor vehicle accident at issue. A.B. Medical Services PLL v. Lumbermans Mutual Casualty, N.Y.L.J September 30, 2003. (insurer cannot negate the careful proscriptions for expert proof in Central General Hospital in favor of mere speculation and debate).

Further, it is well established “that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Zuckerman v. City of New York, 49 NY2D 557. The defendant submitted an unsworn to Accident Analysis Report. An unsworn report on which the defendant relied is not in admissible form and as such is not sufficient to defeat a motion for summary judgment. Washington v. City of Yonkers, 293 A.D.2d 741. Therefore, the defendant has failed to submit sufficient proof which would allow this court to determine whether the accident caused the alleged injuries.

Moreover, the basis for each of the insurer’s denials were that the results from a “Low Impact Study” had shown that the injuries alleged in the claim forms were not related to the motor vehicle accident in question and were inconsistent with a collision of that nature. The insurer posits that an accident at this speed could not have caused the alleged injuries and that therefore the claim is fraudulent and not covered.

Defendant relies upon the theory that if a collision was a deliberate event caused in the furtherance of an insurance fraud scheme, it would not be a covered accident. Metro Medical Diagnostics, P.C. v. Eagle Ins. Co., 293 A.D.2d 751; see also Westchester Medical Center v. Travelers Property Cas. Ins. Co., 309 A.D.2d 927. However, the defendant has failed to come forth with evidence that the accident was a deliberate event or a part of an insurance fraud scheme. Rather the defendant erroneously relies upon an inadmissible report which states that the injuries were caused by an accident which was “not sufficient to cause persistent injury to volunteer test subjects.” The report, even if admissible, fails to establish that the accident was a [*3]deliberate event caused in the furtherance of an insurance fraud scheme.

The No-Fault Law requires the carrier to either pay or deny the claim for No-Fault benefits within thirty days from the date the applicant supplies proof of claim. (Insurance Law, §5106(a); 11 NYCRR §65.15(g)(3). The bills received prior to June 10, 2002 were denied after thirty days. Without a valid “coverage” defense the court grants the plaintiff summary judgment as to each of those bills . Only the bill received by the insurer on June 10, 2002 was timely denied. As to the bill which was timely denied, the defendant has failed to submit sufficient proof in admissible form which would allow this court to determine whether the accident in question could cause the alleged injuries. An affidavit by a claims adjuster regarding the validity of a “Low Impact Study” and an unsworn report are insufficient to oppose a motion for summary judgment.

Accordingly, plaintiff’s motion for summary judgment is granted. The plaintiff is given leave to enter judgment against the defendant in the sum of $7,562.00 plus statutory attorneys’ fees and interest.

Judge, Civil Court

Decision Date: April 02, 2004