Opinion
2007-817 N C.
Decided July 8, 2008.
Appeal from an order of the District Court of Nassau County, Third District (Erica L. Prager, J.), entered March 12, 2007. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment.
Order affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment on the ground that the assignor's injuries did not arise out of an insured incident. The court below granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment. This appeal by defendant ensued.
Contrary to defendant's contention, the affidavit submitted by plaintiff in support of its motion for summary judgment established that plaintiff's biller possessed sufficient personal knowledge of plaintiff's practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers ( cf. Fortune Med., P.C. v Allstate Ins. Co. , 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th 10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. , 14 Misc 3d 44 [App Term, 2d 11th Jud Dists 2006]). Accordingly, the court below properly determined that plaintiff made a prima facie showing of its entitlement to summary judgment. The burden then shifted to defendant to raise a triable issue of fact ( see Zuckerman v City of New York, 49 NY2d 557).
Although defendant admittedly failed to pay or deny plaintiff's claims within the 30-day prescribed period (Insurance Department Regulations [ 11 NYCRR] § 65-3.8 [c]), and failed to establish that said period was extended by a timely request for verification (Insurance Department Regulations [ 11 NYCRR] § 65-3.5 [a], [b]), it was not precluded from raising its defense of lack of coverage based upon its conclusion that the underlying loss was the result of an intentional act ( see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198). However, the affidavit of defendant's investigator, submitted in opposition to plaintiff's motion and in support of defendant's cross motion for summary judgment, was insufficient to demonstrate that defendant's defense of lack of coverage was "premised on the fact or founded belief that the alleged injury does not arise out of an insured incident" ( Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Accordingly, the court below properly granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.