In this action brought by a health care provider to recover no-fault benefits, defendant moves for an order compelling plaintiff to accept defendant's answer and dismissing plaintiff's complaint in its entirety or, alternatively, for an order dismissing and severing the bundled causes of action. Plaintiff cross-moves pursuant to CPLR 3215 for an order granting a default judgment or, alternatively, for an order dismissing defendant's defenses pursuant to CPLR 3211 and to treat the [*2]cross-motion as a motion for summary judgment.

Plaintiff seeks reimbursement of first-party benefits for medical services rendered to seven assignors, who were allegedly injured in four separate automobile accidents. Plaintiff maintains that it has met its prima facie burden of establishing that it properly submitted its proofs of claim, and that defendant failed to pay or deny the claims within thirty days of receipt. Therefore, plaintiff maintains it is entitled to judgment in the sum of $15,103.00 plus statutory interest and attorney's fees (see Insurance Law § 5106 [a]; 11 NYCRR § 65.15 [g] [3]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept]). Once plaintiff establishes its prima facie case in order for defendant to withstand summary judgment it must demonstrate a triable issue of fact exists (see Alvarez v Prospect Hospital, 68 NY2d 320 [1986]).

Defendant moves pursuant to CPLR 3012 (d) for an order compelling plaintiff to accept a late served answer. Defendant argues that its default was not willful and that it has a meritorious defense. Defendant's counsel maintains it made attempts to obtain a stipulation to extend the time to answer. Moreover, defendant argues the bundling of the claims in this matter made a timely answer "virtually impossible" as the claims involved several different incidents and were assigned to different claims representatives. The court finds defendant has established a meritorious defense, reasonable excuse for the delay and an absence of prejudice to plaintiff. Therefore, that branch of defendant's motion for an order compelling plaintiff to accept the late served answer is granted.

The court will next address that portion of defendant's motion for an order granting summary judgment in its favor dismissing the complaint in its entirety. Defendant argues plaintiff is not entitled to coverage "based upon evidence that the four underlying incidents from which each of the no-fault claims arise were intentional acts and not accidents and that all of the claimants made material misrepresentations in the presentation of their respective claims." It is undisputed that defendant did not deny the claims within the requisite time period. Although an untimely denial precludes defendant from interposing most defenses, a fraud defense survives the preclusion sanction (see Matter of Metro Med. Diagnostics v Eagle Insurance Co., 293 AD2d 751 [2002]). An insurer has the burden to come forward with proof in admissible form to establish the basis for its belief that there is no coverage (see Mount Sinai Hospital v Triboro Coach, Inc., 263 AD2d 11 [2d Dept 1990]). Here, the denial of claim forms (Exhibit "C," annexed to Notice of Motion) pertaining to the claims of assignors Solovov, Petrosian, Camara, Bodnar, Augustin and Morrison state that benefits were denied based on: "loss not an accident; violation of the fraud provisions of the policy; failure to cooperate based on evidence of false or misleading information given during the presentation of the claim, and not an eligible injured person." In addition, the denial of claim form for claims submitted in the name of Jennifer Griffith states: "Jennifer Griffith/ Griffen is not an eligible injured person as she is not the individual who was in the vehicle at the time of the loss and based on her failure to cooperate and to attend the Examination Under Oath."

In support of its motion, defendant submits the affidavits of Susan Curcione, Don McCaslin, Robert Battista and Gus Simeon (Exhibit "D," annexed to Notice of Motion), all employed as investigators with the Special Investigative Unit of defendant. Investigator Curcione states that her investigation of the loss that occurred on May 28, 2002 involving a car registered to and operated by a Mozard Fleurimond revealed the policy on the vehicle was issued 22 days prior to the loss and canceled approximately two months after the accident. Assignors Camara and [*3]Augustin were passengers in this vehicle. Another occupant of the vehicle, Mr. Merisier, gave as his address the same address given by another party under investigation as a passenger in another accident. Investigator Battista was assigned the accident which occurred on January 23, 2002 which involved a vehicle registered to a Patricia Duddie and operated by an Andrew Alleyne. Assignor Morrison was a passenger in this vehicle. The policy was issued nine days before the loss and canceled 21 days after the loss. Investigator Battista states that Alleyne was in prior accidents on January 25, 2001 and February 7, 2002. Another passenger in this vehicle, Paduani, was involved in accidents in 1999, June 8, 2000, and on June 9, 2000. Investigator Gus Simeon states he investigated an accident which occurred on July 3, 2002 involving a car registered to and operated by assignor Solovov. This vehicle was involved in a subsequent loss on December 12, 2002. The adverse operator involved in the subject accident was also involved in accidents on April 3, 1998, January 16, 2001, June 21, 2002 and June 29, 2002. Assignor Bodnar was involved in losses on December 3, 1997, January 26, 1998, February 3, 1998, November 12, 2000 and December 7, 2001. Assignor Petrosian's address appears repeatedly in several other incidents under investigation. Investigator Don McCaslin states that he was assigned to investigate an accident that occurred on January 1, 2002 involving a 1998 Plymouth registered to and operated by Patrick Griffith. Assignor Jennifer Griffith, his wife, was a passenger in the insured vehicle. Investigator McCaslin states that on January 8, 2002 State Farm was notified that an accident occurred involving its insured. McCaslin states that shortly after February 1, 2002 he received correspondence from the Law Offices of Felix Kozak, P.C. advising that it had been retained to represent Jennifer Griffith with respect to the subject accident. A copy of Kozak's letter is annexed to the motion papers as Exhibit "W." Investigator McCaslin goes on to state that after being unsuccessful in obtaining recorded statements of Jennifer Griffith through Kozak's office he contacted both Jennifer and Patrick Griffith directly and was advised by Jennifer Griffith that she had not retained an attorney and did not know anyone named Felix Kozak. Based on this information, Investigator McCaslin filed a report with the Insurance Fraud Bureau (copy of report is annexed to papers as Exhibit X). Investigator McCaslin states that in an attempt to ascertain the identity of the individual who had assumed Jennifer Griffith's identity, he requested that counsel for plaintiff, McDonnell & Adels, schedule the "alleged Jennifer Griffith's Examination Under Oath through the office of Felix Kozak, Esq." He was then advised that the EUO was scheduled for August 22, 2002 and rescheduled for September 12, 2002. On both occasions, Investigator McCaslin states, Mr. Kozak's office requested an adjournment. After the second adjournment there was no further contact with Felix Kozak.

On August 22, 2002, Jennifer Griffith appeared at an EUO. The transcript is annexed to the notice of motion as Exhibit "AA." Copies of the notarized signature of Jennifer Griffith's transcript are annexed to the affirmation in further support of motion and in opposition to cross-motion as Exhibit "C." Jennifer Griffith testified that she was involved in the accident but was not injured and did not seek medical treatment. She testified that the signatures on the no-fault applications did not belong to her, that the address on the forms is incorrect, and that the listed social security number is not hers. Moreover, she points out that the NF-2 form (Exhibit "BB," annexed to Notice of Motion) contains three signatures with different spellings of the name Griffith; that the fraudulent signatures are not even consistent on this one form.

Plaintiff challenges the admissibility of this evidence but does not address the merits of any of these statements. Plaintiff does submit the affidavit of Maya Rozenberg, [*4]billings/collections manager and administrative supervisor for Deajess Medical Imaging, P.C. She states that it is the practice of Deajess to require a patient to produce photo identification (annexed to Notice of Cross-Motion).

The court finds the findings of the special investigators, independent of the EUO disclosures, are sufficient to demonstrate that the denial of claims for assignors Augustin, Bodnar, Camara, Morrison, Petrosian and Solovov was premised upon a "founded belief" that the injuries do not arise out of a covered accident (see Ocean Diagnostic Imaging, P.C. v Utica Mutual Ins. Co., 8 Misc 3d 131 [A], 2005 NY Slip Op 51080 [U] [App Term, 2d & 11th Jud Dists]). Therefore, defendant has demonstrated the existence of a triable issue of fact as to whether the alleged injuries were related to the accident and whether there was a lack of coverage (see Careplus Medical Supply, Inc. v Kemper Auto & Home Insur. Co., 8 Misc 3d 127 [A], 2005 NY Slip Op 50958 [U] [App Term, 2d & 11th Jud Dists]). As to the fourth cause of action relating to the claim of assignor Jennifer Griffith, the court finds defendant is entitled to summary judgment dismissing said cause of action. The evidence proffered by defendant establishes its entitlement to summary judgment. Plaintiff has failed to raise a triable issue of fact. An assignee stands in the shoes of the assignor. Here, the assignor impersonated the individual actually involved in the accident. Even if the assignor received medical services, she does not qualify for no-fault benefits since she is not an eligible injured person. Therefore, the medical provider is not entitled to reimbursement on that claim (I. e., Deajess Medical Imaging a/a/o Jennifer Griffith).

Finally, the court will address defendant's request to sever the remaining bundled causes of action. Pursuant to CPLR 603: "In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue." Where there are numerous unrelated assignors injured in different accidents, the claims are likely to raise few common issues of law and fact. A single trial may be unwieldy and confuse the trier of fact (see Metro Medical Diagnostics, P.C. v MVAIC, 6 Misc 3d 136 [A], 2005 NY Slip Op 50238 [U] [App Term, 2d & 11th Jud Dists]). In view of the foregoing, the remaining causes of action are severed for separate trial of each assigned claim. Specifically, the claims for assignors Camora and Austin shall remain under this index number; the claim for assignor Morrison shall have a separate index number and the claims for assignors Bodnar, Petrosian and Solovov shall be maintained together in a separate index number. Plaintiff has ninety (90) days from service of a copy of this Order with Notice of Entry to comply. The claim for assignor Griffith is dismissed in accordance with the prior discussion.

Plaintiff's cross-motion is denied.

This constitutes the decision and order of the Court.

DATED: June 28, 2006

Brooklyn, New York

DELORES J. THOMAS

Judge Civil Court [*5]