Ocean Diagnostic Imaging P.C. v Travelers Indem. Co.

[*1] Ocean Diagnostic Imaging P.C. v Travelers Indem. Co. 2005 NYSlipOp 50644(U) Decided on April 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 29, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., RIOS and BELEN, JJ.
2004-959 K C

Ocean Diagnostic Imaging P.C. a/a/o Altagracia Dorville, Appellant, THE

against

Travelers Indemnity Company, Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered May 25, 2004, as denied plaintiff's cross motion for summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff's cross motion for summary judgment granted in the amount of $1,791.73, and matter remanded to the court below for the 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant failed to meet its burden in that its submissions did not adequately demonstrate that it denied plaintiff's claim within 30 days of receipt of the claim (11 NYCRR 65-3.8 [c]) nor [*2]that it extended the 30-day period by requesting verification (11 NYCRR 65-3.5). Accordingly, it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). It was not, however, precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). Although defendant's denial of plaintiff's claim indicated that the facts of the loss could not be verified due to inconsistencies in the statements given by plaintiff's assignor and the other persons who were allegedly involved in the accident, defendant's proof in support of its allegations and in opposition to plaintiff's cross motion, consisting of an affidavit of its claims representative, an unsworn investigator's report and a questionnaire signed by plaintiff's assignor, containing her answers to questions regarding details of the accident, did not demonstrate the nature of those discrepancies, and was insufficient 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 195, 199 [1997]). Accordingly, since defendant failed to raise a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff's cross motion for summary judgment is granted, and the matter is remanded for the calculation of the statutory interest due on $1,791.73 and attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: April 29, 2005