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

[*1] Ocean Diagnostic Imaging P.C. v Eagle Ins. Co. 2005 NYSlipOp 51027(U) Decided on June 27, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., McCABE and COVELLO, JJ.
2004-456 N C

Ocean Diagnostic Imaging P.C., a/a/o Sofia Kandelaki, Appellant,

against

Eagle Insurance Company, Respondent.

Appeal by plaintiff from an order of the District Court, Nassau County (S. Jaeger, J.), entered December 15, 2003, which denied plaintiff's motion for summary judgment.

Order unanimously reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for a 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]; 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]). The burden then shifted to defendant to demonstrate a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff's motion, defendant asserted that it has a founded belief that the incident was not an accident but a deliberate event staged in furtherance of a scheme to defraud the insurer (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]). For the reasons this court [*2]set forth in the case of A.B. Med. Servs. v Eagle Ins. Co. (3 Misc 3d 8 [2003]), which involved the same accident, same assignor and the same showing by defendant in support of its claim of fraud, plaintiff's motion for summary judgment should be granted.
Decision Date: June 27, 2005