Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered March 22, 2005. The order, insofar as appealed from as limited by plaintiff's brief, denied plaintiff's motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover $930 in first-party no-fault benefits for medical supplies furnished to its assignor. Thereafter, plaintiff moved for summary judgment. In an order entered March 22, 2005, insofar as appealed from, the court below denied plaintiff's motion.

The deficiency in plaintiffs' moving papers concerning proof of its submission to defendants of the $930 claim was cured by the denial of claim form, dated May 19, 2003, annexed to defendants' opposition papers which states that defendants received the $930 claim on May 14, 2003 (see e.g. A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]). In opposition to plaintiffs' motion for summary judgment, defendants annexed unsworn reports by defendants' doctors which were insufficient to establish the lack of medical necessity and rebut plaintiff's prima facie showing (see e.g. Amaze Med. Supply Inc. v
Lumbermens Mut. Cas. Co., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & [*2]11th Jud Dists]).

Defendants, however, also asserted that "there was a fraudulent scheme in the happening of the accident." We find that defendants' papers sufficiently demonstrate defendants' "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 NY2d 195, 199 [1997]). Consequently, defendants demonstrated the existence of a triable issue of fact as to
whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d
557 [1980]), and, thus, the court below properly denied plaintiff's motion for summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: February 28, 2006