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

[*1] Ocean Diagnostic Imaging P.C. v AIU Ins. Co. 2005 NY Slip Op 52200(U) [10 Misc 3d 139(A)] Decided on December 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2004-1747 N C.

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o LYUBOV LASHKARI, Appellant,

against

AIU INSURANCE COMPANY, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (David A. Gross, J.), dated September 8, 2004. The order denied plaintiff's motion for summary judgment.

Order unanimously 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 claims, setting forth the fact and the amounts of the losses 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]; 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]). Since defendant failed to pay or deny the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 [*2]NY2d 195, 201 [1997]). The affidavit submitted by defendant's special investigator was 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., 90 NY2d at 199). Accordingly, 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]), plaintiff's motion for summary judgment was properly denied.
Decision Date: December 30, 2005