OCEAN DIAGNOSTIC IMAGING v. LANCER INSURANCE COMPANY (2004)

Appeal by defendant from an order of the Civil Court, Kings County (J. Battaglia, J.), entered on June 11, 2003, which granted plaintiff's motion for summary judgment.

Order affirmed without costs.

 Plaintiff health care provider made out a prima facie showing of entitlement to recover no-fault benefits for services rendered to its assignor by the submission of proof that the statutory claim forms had been mailed and received, and that defendant did not pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106[a];  New York Hosp. Med. Ctr. of Queens v. New York Cent. Mut. Fire Ins. Co., 8 A.D.3d 640, 779 N.Y.S.2d 548 [2004];  Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742, 774 N.Y.S.2d 564 [2004];  Amaze Med. Supply v. Eagle Ins. Co., 2 Misc.3d 128(A), 784 N.Y.S.2d 918, 2003 N.Y. Slip Op. 51701[U], 2003 WL 23310886 [App. Term, 2d & 11th Jud. Dists.] ).   In opposition to plaintiff's motion for summary judgment, defendant has failed to raise a triable issue of fact.

Defendant's denial of benefits form indicates that defendant received plaintiff's claim on October 5, 2001, and that it did not deny the claim until December 19, 2001, which was beyond the statutorily prescribed 30-day period (see 11 NYCRR 65.15[g][3];  Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 278, 660 N.Y.S.2d 536, 683 N.E.2d 1 [1997] ).   Although the 30-day statutory period may be extended by a verification request (11 NYCRR 65.15[d][1], [2] ), there was no proof submitted in admissible form that the alleged verification requests were mailed (see Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 729 N.Y.S.2d 776 [2001];  Amaze Med. Supply v. Colonial Penn Ins. Co., 3 Misc.3d 135(A), 787 N.Y.S.2d 675, 2004 N.Y. Slip Op. 50471[U], 2004 WL 1243410 [App. Term, 2d & 11th Jud. Dists.] ).

 Despite the untimely denial of plaintiff's claim, defendant is not precluded from asserting the defense that the alleged injuries were not causally related to the accident, which was the sole ground for defendant's denial of no-fault benefits (see Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997];  Mount Sinai Hosp. v. Triboro Coach, 263 A.D.2d 11, 18-19, 699 N.Y.S.2d 77 [1999] ).   The affidavit of defendant's claims representative, however, was insufficient to demonstrate that defendant's denial 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 N.Y.2d at 199, 659 N.Y.S.2d 246, 681 N.E.2d 413).   Moreover, the unsworn “Automotive Engineering Report,” attached thereto did not constitute competent proof in admissible form ( see Dotzel v. Allstate Ins. Co., 2003 N.Y. Slip Op. 50853[U], 2003 WL 21049000 [App. Term, 9th & 10th Jud. Dists.] ), and defendant failed to proffer an acceptable excuse for failure to tender such proof in admissible form (see Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298 [1979];  Allstate Ins. Co. v. Keil, 268 A.D.2d 545, 702 N.Y.S.2d 619 [2000] ).   Accordingly, since defendant failed to raise any triable issue of fact, plaintiff's motion for summary judgment was properly granted.

Plaintiff (health care provider) moved for summary judgment and made out a prima facie showing of entitlement thereto upon alleging that it filed a claim for payment of no-fault benefits which was received by the carrier on October 5, 2001, and that a denial was not issued until December 19, 2001.   Since the denial was well past the 30 days, the plaintiff asserts that any denial is ineffective pursuant to 11 NYCRR 65.15(g)(3) (see also Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 660 N.Y.S.2d 536, 683 N.E.2d 1 [1997] ).   Plaintiff further asserted that although the 30-day period may be extended by a request for verification pursuant to 11 NYCRR 65.15(d)(1), (2), no such requests were made in the case at bar.

Although I am not in full agreement with those assertions, my dissent is grounded firmly in the findings of the Court of Appeals in the matter of Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997] and followed by Mount Sinai Hosp. v. Triboro Coach, 263 A.D.2d 11, 699 N.Y.S.2d 77 [1999].

The Court of Appeals clearly and unequivocally stated that if the alleged injuries were not causally related to the accident, the strict 30-day time limit (11 NYCRR 65.15[g][3] ) for filing a denial would not apply.   That Court wisely reasoned that the no-fault regulations could not be used to mandate that an automobile insurance policy be used to pay for alleged injuries that did not arise from the automobile accident claimed.

It is evident to me that the defendant's denial of the claim sufficiently raised that issue.   Furthermore, contrary to the holding of the majority, I find that the papers submitted in opposition to the plaintiff's motion for summary judgment were also sufficient to raise that issue of fact.

The instant case involves a minor accident between a large chartered bus in which the respondent was a passenger and a 1999 Ford Taurus, a mid-sized passenger automobile.   Indeed the only damage to the bus was a one-inch crack in the front bumper which did not even warrant any repair.   The passenger car suffered a shattered rear windshield and a buckled rear tailgate.   There has been no reported injuries of any kind from the occupants of the passenger car.   The tour guide on the bus stated that all the occupants of the bus fully participated in the recreational events of the day.   Indeed the police report did not note any injuries by any occupants of either the bus or the passenger car.   The insurance carrier engaged the services of an automotive engineering expert who investigated the accident and determined that the plaintiff could not have suffered the injuries complained of.

Under all the facts and circumstances, it is abundantly clear that there is an issue of fact as to whether the injuries alleged resulted from the accident claimed.

In support of their opinion the majority relies solely on the fact that the “Automotive Engineering Report” was unsworn and therefore did not constitute competent proof in admissible form.   The majority argues that the failure to submit a sworn affidavit or a valid reason for failing to do so is fatal to this position.

However, I find that such unsworn report is sufficient for the purpose of raising a triable issue of fact.   There is a long line of cases from the Court of Appeals and lower courts that support the proposition, that for the purpose of defending a summary judgment motion, statements that may be subject to objections, should not be precluded from consideration by the court if they are otherwise relevant and competent (see Phillips v. Kantor & Co., 31 N.Y.2d 307, 338 N.Y.S.2d 882, 291 N.E.2d 129 [1972], Narvaez v. NYRAC, 290 A.D.2d 400, 737 N.Y.S.2d 76 [2002];  Kwi Bong Yi v. JNJ Supply Corp., 274 A.D.2d 453, 711 N.Y.S.2d 906 [2000];  Eitner v. 119 W 71st St. Owners Corp., 253 A.D.2d 641, 677 N.Y.S.2d 555 [1998];  Guzman v. Strab Const. Corp., 228 A.D.2d 645, 645 N.Y.S.2d 318 [1996] ).

This is especially true, as it is here, where the witness who prepared the unsworn “Automotive Engineering Report” is presumably available to testify (Levbarg v. City of New York, 282 A.D.2d 239, 241, 723 N.Y.S.2d 445 [2001] ).

Accordingly, I would reverse the holding of the lower court and would deny the plaintiff's motion for summary judgment.

PESCE, P.J., and RIOS, J., concur. GOLIA, J., dissents in a separate memorandum.