Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp.

[*1] Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp. 2005 NYSlipOp 50790(U) Decided on May 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 23, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-863 K C NO. 2004-863 K C

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o EDMOND JOSEPH, Appellant-Respondent,

against

TRAVELERS PROPERTY CASUALTY CORPORATION, Respondent-Appellant.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered April 20, 2004, as denied its motion for summary judgment. Cross appeal by defendant from so much of the same order as denied its cross motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services provided to its assignor, plaintiff health care provider established its prima facie entitlement to summary judgment by showing 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]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant's failure to seek verification of the assignments, or to allege any deficiency in the assignments in its denial of claim form(s), constitutes a waiver of any defenses with respect thereto (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. [*2]Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

Nevertheless, despite plaintiff's contention that the denial was untimely, it is well settled that a defendant is not 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]). Herein, the affidavits of the investigator and claims representative were sufficient to demonstrate that defendant's denial 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, triable issues of fact exist, and the court below properly denied plaintiff's motion for summary judgment and defendant's cross motion for summary judgment.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
OCEAN DIAGNOSTIC IMAGING P.C.
a/a/o EDMOND JOSEPH,
Appellant-Respondent,

-against-

TRAVELERS PROPERTY CASUALTY CORPORATION,
Respondent-Appellant.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 23, 2005