Ocean Diagnostic Imaging P.C. v Eagle Ins. Co.

[*1] Ocean Diagnostic Imaging P.C. v Eagle Ins. Co. 2004 NY Slip Op 51640(U) Decided on December 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-426 N C

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o JACQUES EXAMAR, Appellant,

against

EAGLE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the District Court, Nassau County (S. Jaeger, J.), entered December 15, 2003, which denied its motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; see 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).
Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting the defense that the alleged injuries did not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The affidavit submitted by defendant's investigator supported by the examination under oath of plaintiff's assignor was sufficient to demonstrate that defendant's denial was based upon a "founded belief that the alleged injur[ies] do [] not rise out of an insured incident" (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Accordingly, since defendant [*2]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 577 [1980]), plaintiff's motion for summary judgment was properly denied.
Decision Date: December 15, 2004