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

[*1] Ocean Diagnostic Imaging P.C. v AIU Ins. Co. 2005 NY Slip Op 50188(U) Decided on February 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 17, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-457 N C

Ocean Diagnostic Imaging P.C., a/a/o Willington Desinor, Appellant,

against

AIU Insurance Company, Respondent.

Appeal by plaintiff from an order of the District Court, Nassau County (J. Spinola, J.), entered December 3, 2003, which denied plaintiff's motion for summary judgment.

Order unanimously reversed without costs, plaintiff's motion for summary judgment granted in the principal sum of $1,791.73 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

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, 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]; 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 (11 NYCRR 65.15 [g] [3]), it was 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 collision was [*2]in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). It remained incumbent upon defendant, nevertheless, to submit proof in admissible form to rebut plaintiff's prima facie showing (A.B. Med. Servs. v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). The
assertion by defendant that the accident was fraudulent was not supported by evidence [*3]
in admissible form and no excuse was forthcoming as to why defendant's investigator's report was unsworn (Bendik v Dybowski, 227 AD2d 228 [1996]).

Accordingly, plaintiff's motion for summary judgment is granted and the matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: February 17, 2005