Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp.
Annotate this CaseDecided on July 6, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 6, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and BELEN, JJ.
2004-905 K C
Ocean Diagnostic Imaging P.C., a/a/o Eric Kustor Elizabeth Cineus Amin Perez Miguel Pena, 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 on March 26, 2004, as denied its motion for summary judgment as to its causes of action as assignee of Elizabeth Cineus, Amin Perez and Miguel Perez in the aggregate sum of $7,131.47. Cross appeal by defendant from so much of the same order as denied its cross motion for summary judgment dismissing the complaint.
Order unanimously modified by providing that plaintiff's motion for summary judgment is denied in its entirety; as so modified, affirmed without costs.
Plaintiff commenced the instant action to recover no-fault benefits in the
sum of $8,923.20, as assignee of Eric Kustor ($1,791.73), Elisabeth Cineus ($1,791.73), Amin Perez ($2,669.34), and Miguel Pena ($2,670.40), and thereafter moved for summary judgment. The court below denied plaintiff's motion for summary judgment with regard to its claims as assignee of Cineus, Perez and Pena on the ground that there was no proper proof of mailing of these claims, and granted the motion with regard to plaintiff's claim as assignee of Kustor in the amount of $1,791.73, based on its determination that defendant did not timely deny this claim. The court also denied defendant's cross motion for summary judgment dismissing the complaint.
Plaintiff established a prima facie entitlement to summary judgment with regard to its claims as assignee of Kustor, Cineus and Perez, by proof that it submitted the claims, setting [*2]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 court correctly determined that plaintiff failed to establish proof of mailing of its claim as assignee of Pena. Accordingly, the court properly denied summary judgment as to this claim, and the burden of proof never shifted to defendant with respect thereto (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, contrary to the determination of the court below, plaintiff's proof of mailing of the claims regarding assignors Cineus and Perez, consisting of certificates of mailing and return receipts, was sufficient to establish actual mailing (see Tracy v William Penn Life Ins. Co. of N.Y., 234 AD2d 745, 748 [1996]). Nonetheless, for the reasons set forth below, the motion by plaintiff for summary judgment as to the claims pertaining to assignors Cineus and Perez was properly denied, and the motion for summary judgment as to the claim pertaining to assignor Eric Kustor should similarly have been denied.
A defendant insurer's failure to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]) precludes it from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, despite an untimely denial of the claim, an insurer 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]). The affidavits submitted by defendant's investigators in opposition to plaintiff's motion and in support of its cross motion for summary judgment were 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 195, 199 [1997]). Since defendant demonstrated
the existence of 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]), denial of plaintiff's motion for summary judgment was warranted as to the claims pertaining to assignors Cineus, Perez and Kustor. Defendant's cross motion for summary judgment was properly denied since there are issues of fact warranting a trial.
Decision Date: July 06, 2005
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