Opinion
No. 2003-347 Q C.
Decided January 27, 2004.
Appeal by defendant from an order of the Civil Court, Queens County (B. Siegal, J.), entered November 26, 2002, granting plaintiffs' motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint.
Order unanimously affirmed without costs.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
In or about November 2001, plaintiffs commenced this action to recover $5,465.42 in first-party no-fault benefits for health services rendered to their assignor, as well as statutory interest and attorney's fees, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered November 26, 2002, the court below granted plaintiffs' motion and denied defendant's cross motion.
A review of the record indicates that plaintiffs established their prima facie entitlement to summary judgment by showing that they submitted complete proof of claims to defendant in the amount of $5,465.42, which defendant did not pay or deny within the statutory period ( see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v. Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).
Defendant asserts that it denied the claims because the assignor failed to appear for an examination under oath and committed fraud on her application for insurance. We note, however, that at the applicable time, the insurance regulations contained no authorization for examinations under oath ( see Bronx Med. Serv. P.C. v. Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]; cf. 11 NYCRR 65-3.5 [e]). Moreover, the attorney's affidavit, consisting of unsubstantiated hypotheses and suppositions, is legally insufficient to support defendant's fraud allegation ( see e.g. Penny v. Pembrook Mgt., 280 AD2d 590, 591). Consequently, defendant failed to show a material issue of fact requiring a trial of the action and we find that the court below acted properly in granting plaintiffs' motion for summary judgment and denying defendant's cross motion for dismissal.