IN RE: METRO MEDICAL DIAGNOSTICS

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: METRO MEDICAL DIAGNOSTICS, P.C., Appellant, v. EAGLE INSURANCE COMPANY, Respondent.

Decided: April 29, 2002

MYRIAM J. ALTMAN, J.P., LEO F. McGINITY, SANDRA L. TOWNES, and STEPHEN G. CRANE, JJ. Joseph Henig, P.C., Bellmore, NY, for appellant. Samuel K. Rubin (Rivkin Radler LLP, Uniondale, NY, [Evan H. Krinick, Cheryl F. Korman, and Stuart M. Bodoff], of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award, the petitioner appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated April 25, 2001, which denied the petition and confirmed the award.

ORDERED that the order is affirmed, with costs.

The petitioner attempted to recover $911.99 in no-fault benefits from Eagle Insurance Company (hereinafter Eagle) for medical treatment rendered to its assignor, Hubert Laguerre, for injuries which he allegedly suffered in a car accident.   The petitioner submitted the bill to Eagle on September 8, 1997, and Eagle denied the claim on December 11, 1997.   The denial was based on the injured person's examination under oath.   The petitioner sought arbitration pursuant to Insurance Law § 5106.   Eagle defended against the claim at arbitration contending that the collision was a deliberate event caused for the purposes of committing insurance fraud.   The arbitrator found in favor of Eagle on this basis, a master arbitrator affirmed the arbitrator's determination, and the Supreme Court confirmed the master arbitrator's award.   The petitioner appeals.   We affirm.

 Contrary to the petitioner's contention, if the collision at issue was a deliberate event caused in the furtherance of an insurance fraud scheme, it would not be a covered accident (see Matter of Progressive Northwestern Ins. Co. v. Van Dina, 282 A.D.2d 680, 724 N.Y.S.2d 431;  Allstate Ins. Co. v. Bostic, 228 A.D.2d 628, 646 N.Y.S.2d 128;  Matter of Aetna Cas. & Sur. Co. v. Perry, 220 A.D.2d 497, 498, 632 N.Y.S.2d 31;  Matter of Travelers Indem. Co. v. Morales, 188 A.D.2d 350, 351, 591 N.Y.S.2d 27;   McCarthy v. Motor Vehicle Acc. Indem. Corp., 16 A.D.2d 35, 41-42, 224 N.Y.S.2d 909, affd. 12 N.Y.2d 922, 238 N.Y.S.2d 101, 188 N.E.2d 405).   Eagle was not precluded from asserting this defense despite its untimely denial of the claim (see Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 N.Y.2d 195, 201, 659 N.Y.S.2d 246, 681 N.E.2d 413;  Town of Oyster Bay v. Employers Ins. of Wausau, 269 A.D.2d 387, 389, 702 N.Y.S.2d 630;  cf.  Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 281, 660 N.Y.S.2d 536, 683 N.E.2d 1 [insurer required to deny claim within 30 days if defense against an otherwise valid claim was based upon statutory reason of intoxication] ), and the arbitrator properly accepted evidence on this issue (see 11 NYCRR 65.17[b][5][xiii][a];  cf.  Matter of Silverman, 61 N.Y.2d 299, 308, 473 N.Y.S.2d 774, 461 N.E.2d 1261).   Furthermore, the arbitrator's decision was amply supported by the evidence in the record, and his determination was not arbitrary and capricious (see Matter of Motor Vehicle Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 224, 652 N.Y.S.2d 584, 674 N.E.2d 1349;  Matter of Jenkins v. Empire/Allcity Ins. Co., 289 A.D.2d 331, 735 N.Y.S.2d 138;  Matter of Brua Cab Corp. v. Royal Indem. Co., 275 A.D.2d 778, 779, 713 N.Y.S.2d 746).

The petitioner's remaining contentions are without merit.

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