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 $1,703.85 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 plaintiff's moving papers concerning proof of its submission to defendants of the claim forms was cured by the denial of claim form, dated June 2004, annexed to defendants' papers, which indicated that defendants received the $680.85 claim in September 2003, and the denial of claim form, dated November 7, 2003, annexed to defendants' papers, which indicated that defendants received the $1,023 claim on October 27, 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]). Contrary to defendants' contention, the letters they allegedly sent to plaintiff in regard to the $680.85 claim, informing plaintiff that said claim was being investigated, do not constitute proper requests for verification and, therefore, did not toll the 30-day claim determination period as to said claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc [*2]3d 92 [App Term, 2d & 11th Jud Dists 2004]; Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co., 4 Misc 3d 142[A], 2004 NY Slip Op 51041[U] [App Term, 2d & 11th Jud Dists]). Having failed to timely pay or deny the $680.85 claim, defendants are precluded from raising most defenses with respect thereto (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, supra).

In regard to the $1,023 claim which defendants timely denied based on the assignor's failure to attend examinations before trial, plaintiff did not admit to receiving verification requests for said examinations and defendants did not provide proof of mailing for any request, and did not otherwise create a presumption of mailing for said requests (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Therefore, defendants failed to establish by competent evidence that they timely mailed such verification request to plaintiff. Accordingly, defendants did not create a triable issue of fact as to the assignor's alleged failure to comply with a verification request (see e.g. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]).

Defendants, however, also asserted that "there was a fraudulent scheme in the happening of the accident," a defense which survives preclusion (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). 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