Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co.

[*1] Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. 2005 NYSlipOp 50525(U) Decided on April 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 13, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., RIOS and BELEN, JJ.
2004-875 K C

Ocean Diagnostic Imaging P.C., a/a/o Marie Boucard, Jumon Boucard, Christopher Boucard, Appellant,

against

New York Central Mutual Fire Insurance Company, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Gesmer, J.), entered on March 26, 2004, 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 assignors, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant's denial of claim forms indicate that defendant did not deny the claim within the statutorily prescribed 30-day period (see 11 NYCRR 65-3.8 [c]), and that its verification requests did not extend the 30-day period since such requests were untimely (11 NYCRR 65-3.8 [a], [b]). Inasmuch as defendant failed to pay or deny the claim within the 30-day period, 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 is not precluded from asserting the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The "Accident Analysis" report, referred to by defendant as a "Low Impact Study," together with the sworn certification of the Technical Consultant/Accident Reconstructionist who prepared the report, constituted admissible evidence in support of defendant's defense of a lack of causal [*2]nexus between the accident and the injuries claimed by plaintiff's assignors, and was sufficient to demonstrate that the defense 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 at 199; see also Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). Contrary to plaintiff's contention, the Accident Analysis report was relevant to the issue of causation (Valentine v Grossman, 283 AD2d 571 [2001]).

Therefore, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff's motion for summary judgment was properly denied.
Decision Date: April 13, 2005