Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co.

[*1] Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. 2004 NY Slip Op 51251(U) Decided on October 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2003-1664 N C

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o Irina Polyanskaya, Appellant,

against

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from so much of an order of the District Court, Nassau County (H. Miller, J.), entered on September 8, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.

Plaintiff, a health care provider, established its prima facie entitlement to summary judgment on its claim for first-party no-fault benefits for services rendered to its assignor by evidence of submission of a complete proof of claim, its receipt
by defendant, and defendant's failure to pay or deny the claim within the prescribed 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th & 10th Jud Dists]). Defendant's requests for examinations under oath did not toll the 30-day period, since the insurance [*2]regulations in effect at the time plaintiff's claims were submitted did not contain a provision requiring a claimant to appear for an examination under oath (see A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]).

While defendant is thus precluded from asserting most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), it
is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant's special investigator was sufficient to demonstrate that defendant's denial was based upon a "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]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.), plaintiff's motion for summary judgment was properly denied.
Decision Date: October 20, 2004