Diagnostic Rehab. Medicine Serv., P.C. v Farm Family Cas. Ins. Co.

[*1] Diagnostic Rehab. Medicine Serv., P.C. v Farm Family Cas. Ins. Co. 2005 NYSlipOp 50826(U) Decided on June 2, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 2, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. PHYLLIS GANGEL-JACOB, Justices.


Diagnostic Rehab. Medicine Serv., P.C., Assignee of Julio Duran, Plaintiff-Appellant, 570292/04

against

Farm Family Casualty Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court, Bronx County, entered November 20, 2003 (Irving Rosen, J.) denying its motion for summary judgment.

PER CURIAM:

Order entered November 20, 2003 (Irving Rosen, J.) reversed, with $10 costs, plaintiff's motion for summary judgment is granted and the matter is remanded to Civil Court for (1) the assessment of appropriate attorney's fees and interest pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder, and (2) the entry of a judgment in favor of plaintiff and against defendant in the principal sum of $2,321.38, plus appropriate interest and attorney's fees.

Plaintiff was entitled to summary judgment on the complaint inasmuch as defendant insurance company did not timely deny plaintiff's claim for no-fault benefits within 30 days after proof of claim was received (see Insurance Law § 5106[a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Under the circumstances, defendant insurer [*2]waived any defenses relating to the medical necessity of the treatment rendered (Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]) as well as to the facial sufficiency of the patient's assignment of no-fault benefits submitted by plaintiff (Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996], lv dismissed 89 NY2d 1030 [1997]).

Furthermore, defendant failed to raise an issue of fact as to whether defendant's denial of coverage was "premised on the fact or founded belief that the alleged injury [did] not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 8 AD3d 250 [2004]; Mt. Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]).

This constitutes the decision and order of the court.
Decision Date: June 02, 2005