Ocean Diagnostic Imaging, Inc. v Utica Mut. Ins. Co.

[*1] Ocean Diagnostic Imaging, Inc. v Utica Mut. Ins. Co. 2005 NY Slip Op 50081(U) Decided on January 27, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-121 K C

OCEAN DIAGNOSTIC IMAGING, INC., a/a/o EDWARD MATVEYEV, ALLA GELFAND, Respondent,

against

UTICA MUTUAL INSURANCE COMPANY, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered on November 21, 2003, which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment.

Order modified by providing that plaintiff's motion for summary judgment is denied; as so modified, affirmed without costs.

In this action to recover no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary
judgment by the submission of evidentiary proof that it mailed, and defendant received, the statutory claim forms, and that defendant failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701 [U] [App Term, 2d & 11th Jud Dists]; 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]). [*2]Moreover, defendant's requests for examinations under oath did not toll the 30-day claim determination period since the applicable insurance regulations did not contain provisions requiring a claimant to submit to examinations under oath (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]).

However, defendant 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 claims specialist 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 should have been denied. Inasmuch as defendant has failed to establish entitlement to judgment as a matter of law, its cross motion for summary judgment was properly denied.

Pesce, P.J., and Rios, J., concur.

Golia, J., taking no part.
Decision Date: January 27, 2005