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

[*1] Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. 2005 NY Slip Op 50189(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: 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.
2004-540 N C

Ocean Diagnostic Imaging P.C., as ASSIGNEE OF HERBERT McQUEEN, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal by defendant from an order of the District Court, Nassau County (S. Yeager, J.), entered February 17, 2004, which granted plaintiff's motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover $2,670.40 in assigned 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 (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]). Defendant's failure to pay or deny the claim within the prescribed 30-day period, or to demonstrate that said period had been tolled, precludes defendant from interposing most defenses to the action (Insurance Law § 5106 [a]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]; A.B. Med. Servs. v USAA Cas. Ins. Co., 6 Misc 3d 126[A] 2004 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists]; Diagnostic Rehab. Med. Servs. v Travelers Indem. Co., ___ Misc 3d ___, [*2]2004 NY Slip Op 24505 [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists]). However, defendant was not precluded from asserting the defense that the alleged injuries did not arise out of a covered accident (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; Ocean Diagnostic Imaging v Eagle Ins. Co., 5 Misc 3d 139[A], 2004 NY Slip Op 51640[U] [App Term, 9th & 10th Jud Dists]) which, if substantiated, would constitute a complete defense to the action (Matter of Government Empls. Ins. Co. v Shaulskaya, 302 AD2d 522 [2003]).

To interpose a defense of staged-accident fraud sufficient to raise a triable issue of fact, defendant must establish "the fact or 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]; Ocean Diagnostic Imaging v Eagle Ins. Co., 5 Misc 3d 139[A], 2004 NY Slip Op 51640[U], supra). The facts alleged in an entirely conclusory fashion in the attorney's affirmation in opposition to the summary judgment motion were not based on counsel's personal knowledge and, as unsubstantiated hearsay, were clearly of no probative value (Penny v Pembrook Mgt., 280 AD2d 590, 591 [2001]; Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists]). The bare conclusory statement in a claims representative's affidavit, that her file review "reveal[ed] that based upon Allstate's investigation of this claim, [assignor] engaged in staging a fraudulent accident," merited the lower court's determination that defendant failed to interpose a triable issue of fraud (id.; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th [*3]
Jud Dists 2004]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8, 9-10 [App Term, 9th & 10th Jud Dists 2003]).
Decision Date: February 17, 2005