Ocean Diagnostic Imaging v Lumbermens Mut. Cas. Co.

[*1] Ocean Diagnostic Imaging v Lumbermens Mut. Cas. Co. 2004 NY Slip Op 50510(U) Decided on May 26, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 26, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-1206 K C

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o Bogdan Grishchenko, Appellant,

against

LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent.

Appeal by plaintiff, as limited by its brief, from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered July 8, 2003, as denied its motion for summary judgment.

Order unanimously modified by granting plaintiff's motion for summary judgment and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees; as so modified, affirmed without costs

In this action to recover assigned first-party no-fault benefits, plaintiff made a
prima facie showing of entitlement to summary judgment by proof that it submitted a complete proof of claim to defendant which defendant neither paid nor denied within 30 days (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Defendant concedes that it received the claim from plaintiff on February 18, 2002 and denied said claim on March 25, 2002. Contrary to defendant's claim that the 30-day time period was tolled because it sent out a letter dated February 19, 2002 advising plaintiff that the parties were in the process of undergoing examinations under oath, any request for same did not toll the 30-day time period within which defendant had to deny the claim inasmuch as the regulations in effect at the applicable time contained no provision requiring an [*2]examination under oath (see A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]). Thus, defendant's denial was untimely and it is precluded from raising most defenses with the exception of those not relevant here (see Insurance Law § 5105 [a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Inasmuch as defendant failed to raise any triable of issues of fact, we are of the opinion that the lower court's order should be modified by granting plaintiff's motion for summary judgment. Accordingly, the matter is remanded to the court below for the calculation of statutory interest and attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: May 26, 2004