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 50607(U) Decided on April 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-564 K C

Ocean Diagnostic Imaging P.C. a/a/o NATALIYA GERBER, Respondent,

against

New York Central Mutual Fire Insurance Company, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered March 10, 2004, which granted plaintiff's motion for summary judgment.

Order unanimously reversed without costs, plaintiff's motion for summary judgment denied and matter remanded to the court below for all further proceedings.

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]; 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 65-3.8 [c]), and did not adequately establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65-3.5 [a], [b]), 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 alleged injuries were causally unrelated to the accident, despite the untimely denial of the claim ([*2]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 the "low impact study"), accompanied by an affidavit of the technical consultant/accident reconstructionist who prepared the report, 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., 90 NY2d at 199). Accordingly, 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 should not have been granted and the matter is remanded for further proceedings.
Decision Date: April 22, 2005