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 $3,537 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.

A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment in the principal sum of $1,858.45 by proof that it submitted its $1,023 and $835.45 claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Plaintiff established the submission of said claims by annexing to its moving papers defendants' denial of claim forms, dated June 2004, which state that defendants received the $1,023 claim in September 2003, and received plaintiff's $835.45 claim in October 2003. Therefore, having failed to timely pay or deny said claims, 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 [App Term, 2d & 11th Jud Dists 2004]). [*2]

Plaintiff, however, did not establish its prima facie entitlement to summary judgment as to its $749.35 and $930 claims, since it failed to provide proof that it submitted said claims to defendants. The supporting affidavit by plaintiff's officer merely stated that "proofs of mailings for the billing and documents" sent to defendants "are in my possession." Moreover, plaintiff's attorney's affirmation, based on allegations by a person who had no personal knowledge that the claims were actually mailed to defendants, is of no probative value (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, supra).

Defendants, however, also asserted that "there was a fraudulent scheme in the happening of the accident," a defense that 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