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Recover No Fault Benefits Under New Yorks No Fault Law
In this action brought to recover no-fault benefits, plaintiff moves for summary judgment in the sum of $3,383.38 plus statutory interest together with statutory attorney's fees.
The No-Fault Law provides for payments for medical services provided to a person injured as a result of an accident arising out of the use or operation of a motor vehicle. To recover first-party benefits, a claimant must demonstrate a prima facie entitlement to summary judgment by setting forth proof that it submitted a claim, the fact and amount of losses sustained, and that payment of benefits is overdue (see Insurance Law ยง 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept]).
In support of its motion, plaintiff submits an assignment of benefits form, denial of claim forms, and an affidavit from defendant's billing manager, Yelena Medvedik, stating that the [*2]carrier issued denials more than thirty days after receipt of the bills. The court finds plaintiff has established its prima facie entitlement to summary judgment. Therefore, the burden shifts to defendant to demonstrate a triable issue of fact to withstand summary judgment (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]).
An untimely denial precludes defendant from interposing most defenses including the defense of lack of medical necessity (Amaze Med. Supply, Inc. v. Eagle Insurance Co., 2 Misc 3d 139 [A], 2004 NY Slip Op 050279 [U] [App Term, 2d & 11th Jud Dists]). However, an untimely denial does not preclude a defendant from asserting the defense that the injuries do not arise out of a covered accident or a defense premised on staged accident fraud (see Central General Hosp. v. Chubb Group of Insurance Cos., 90 NY2d 195 [1997]; Matter of Metro Med. Diagnostics v. Eagle Insurance Co., 293 AD2d 751 [2002]). To withstand summary judgment, the insurer must come forward with proof in admissible form to establish the basis for its belief that there is no coverage (see Mount Sinai Hospital v. Triboro Coach, Inc., 263 AD2d 11 [2d Dept 1999]). A "founded belief" cannot be based upon unsubstantiated hypotheses and supposition (see A.B. Medical Services v. Eagle Ins. Co., 3 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2003]).
Therefore, this court concurs with plaintiff and finds defendant has failed to submit any competent evidence to support its defense that the injuries are not related to the accident. The affidavit is insufficient pursuant to CPLR 2309 (c). The Accident Analysis Report is inadmissible on its own or as an attachment to the affidavit.
Accordingly, plaintiff's motion for summary judgment is granted. The clerk is directed to enter judgment in favor of plaintiff in the sum of $3,383.38 together with statutory interest and attorney's fees.
This constitutes the decision and order of the Court.
Dated: Brooklyn, New York; March 30, 2006
Judge Civil Court: DELORES J. THOMAS
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