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. 2006 NY Slip Op 51275(U) [12 Misc 3d 137(A)] Decided on June 28, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
2005-1664 N C.

Ocean Diagnostic Imaging P.C. a/a/o Gabriel Gonzalez Luis Garcia Moses Gomez, Appellant,

against

State Farm Mutual Automobile Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), dated September 28, 2005. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

Order reversed without costs, defendant's motion for summary judgment denied, plaintiff's cross motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees. [*2]

Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignors. Thereafter, defendant moved for summary judgment dismissing the complaint alleging that the accident was fraudulent. Plaintiff opposed the motion and cross-moved for summary judgment. By order dated September 28, 2005, the court below granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

In the court below and on appeal, defendant argues that plaintiff had no standing to bring the instant action since the assignment of benefits forms were defective. However, since defendant did not timely object to the completeness of the forms or seek verification of the assignments, it waived any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

It is uncontroverted that defendant untimely denied the claims. However, it is well settled that a defendant is not precluded from asserting the defense that a collision was in furtherance of an insurance fraud scheme, despite its untimely denial (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). Contrary to the determination of the court below, we find that the affidavit submitted by defendant's investigator was insufficient 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]). Consequently, defendant failed to demonstrate 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 557 [1980]).

Accordingly, the order of the court below is reversed, defendant's motion for summary judgment is denied, plaintiff's cross motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 28, 2006