Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co.

[*1] Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co. 2005 NYSlipOp 51080(U) Decided on July 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 7, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
2004-1263 K C NO. 2004-1263 K C

Ocean Diagnostic Imaging P.C., a/a/o Tamika Williams, Respondent,

against

Utica Mutual Insurance Company, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (J. Battaglia, J.), entered June 1, 2004, which granted plaintiff's motion for summary judgment in the sum of $879.73, and denied defendant's cross motion for summary judgment.

Order modified by providing that plaintiff's motion for summary judgment is denied; as so modified, affirmed without costs.

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 a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is uncontroverted that defendant denied plaintiff's claim more than two months after its receipt. The court below properly determined that defendant's requests for examinations under oath did not toll the 30-day claim determination period inasmuch as the insurance regulations in effect at the time lacked a provision entitling an insurer to an examination under oath (see King's Med. Supply v Kemper Auto & Home Ins. Co., 3 Misc 3d 131[A], 2004 NY Slip Op 50401[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 141[A], 2004 NY Slip Op 51031[U] [App Term, 9th & 10th Jud Dists]). [*2]

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite its untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit of defendant's claims representative was 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]). Consequently, plaintiff's motion for summary judgment should have been denied. Inasmuch as there are triable issues of fact warranting a trial, defendant's cross motion was properly denied.

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
OCEAN DIAGNOSTIC IMAGING P.C.
a/a/o Tamika Williams,

Respondent,

-against-
UTICA MUTUAL INSURANCE COMPANY,

Appellant.

Golia, J.P., concurs 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: July 07, 2005