Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (2005 NY Slip Op 51747(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Kings County (M. Mendez, J.), entered May 5, 2004, which denied defendant’s motion to preclude, or in the alternative, to compel compliance with discovery demands and granted plaintiff’s cross motion for summary judgment.

Order 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 losses
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 then shifted to defendant to create a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Absent 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]), defendant’s conceded failure to deny the claim, received September 25, 2002, until March 28, 2003, violated the 30-day claim determination period and precluded it from interposing its defenses aside from the claim that the incident was staged to defraud. All post-claim requests for examinations under oath (EUO) pursuant to the verification regulations must [*2]be made within prescribed time frames (11 NYCRR 65-3.5 [a], [d]; 11 NYCRR 65-3.6 [b]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). “Any attempt by the insurer to deny the claim prior to exhausting the verification protocols is 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; 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]). Here, defendant’s initial EUO request, its letter dated December 10, 2002, was itself untimely and did not schedule the EUO within the prescribed time. The assignor was therefore under no duty to appear for the first scheduled EUO and it is irrelevant that defendant may have duly rescheduled the EUO upon assignor’s initial non-appearance.

As to the fraud claim, which survives the preclusion sanction (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]), defendant’s proof thereof was not submitted in admissible form. None of the investigators’ reports or operators’ statements were sworn, and neither the affirmation of counsel, which alleged no basis to support an inference that any of the facts asserted in his statements were based on personal knowledge, nor the affidavit of defendant’s employee, which asserted merely the conclusory statement that “material misrepresentations [were] made in the presentation of the claim,” sufficed to allege the necessary facts. Thus, defendant failed to establish a triable issue of fraud and summary judgment was properly granted (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]).

In light of the foregoing, we need not address defendant’s remaining claims of error.

Pesce, P.J., and Patterson, J., concur.

Golia, J., dissents in part in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., PATTERSON and GOLIA, JJ.
OCEAN DIAGNOSTIC IMAGING, P.C.
a/a/o ALICIA PRINCE,

Respondent,

-against-
UTICA MUTUAL INSURANCE COMPANY,

Appellant.

Golia, J., dissents in part and votes to modify the order and deny plaintiff’s motion for summary judgment in the following memorandum:

Contrary to the holding of the majority, I find that the papers submitted by the defendant in opposition to the plaintiff’s motion for summary judgment were sufficient to raise an issue of fact as to whether the defense of fraud was based upon 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]).

For the reasons stated in my dissent in Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co. (6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]), I find that the unsworn reports when submitted in opposition to a motion for summary judgment and accompanied by an affidavit which makes reference to such reports, are sufficient for the purpose of raising a triable issue of fact. This Court must, when deciding a motion for summary judgment, interpret the evidence in the light most favorable to the non-movant (see Weiss v Garfield, 21 AD2d 156 [1964]). This is especially true where there is an allegation of fraud.

Accordingly, I would modify the order of the lower court and would deny the plaintiff’s motion for summary judgment.
Decision Date: October 21, 2005