November 19, 2004

S & M Supply Inc. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51429(U))

Headnote

The relevant facts that the court considered in this case were that a health care provider, S & M Supply Inc., was seeking to recover no-fault benefits for medical services rendered to its assignor, Michael Monsignal. The issue before the court was whether the health care provider had established a prima facie entitlement to summary judgment, and whether the insurance company, State Farm Mutual Automobile Insurance Company, was precluded from raising defenses due to failure to pay or deny the claim within the 30-day claim determination period. The holding of the court was that the health care provider had established a prima facie entitlement to summary judgment, and the insurance company was precluded from most defenses due to the untimely denial of the claim. However, the insurance company was not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, and since they demonstrated the existence of a triable issue of fact as to lack of coverage, the plaintiff's motion for summary judgment was properly denied.

Reported in New York Official Reports at S & M Supply Inc. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51429(U))

S & M Supply Inc. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51429(U)) [*1]

S & M Supply Inc. v State Farm Mut. Auto. Ins. Co.

2004 NY Slip Op 51429(U)

Decided on November 19, 2004

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 19, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-57 N C

S & M SUPPLY INC. a/a/o Michael Monsignal, Appellant,
against
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from so much of an order of the District Court, Nassau County (S. Pardes, J.), entered on November 3, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.

In this action to recover no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted the statutory claim form, setting forth the fact and the amount of the loss sustained (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th & 10th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day claim determination period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of plaintiff’s claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an [*2]insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: November 19, 2004