Jeffrey I. Rubin, Phd Psyc. Svcs., P.C. v Utica Mut. Ins. Co.

[*1] Jeffrey I. Rubin, Phd Psyc. Svcs., P.C. v Utica Mut. Ins. Co. 2005 NY Slip Op 52206(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., GOLIA and BELEN, JJ
2005-393 K C. NO. 2005-393 K C

JEFFREY I. RUBIN, PHD PSYC. SVCS., P.C., Assignee of ELSIE PLAISIMOND, ELSIE PLAISMOND, ELSIE PLCUSMOND and ELSIE PLAISMOND, Respondent,

against

UTICA MUTUAL INS. CO., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered December 15, 2004. The order granted plaintiff's motion for summary judgment.

Order reversed without costs and plaintiff's motion for summary judgment denied.

In this action to recover first-party no-fault benefits for health care 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 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]). Inasmuch as defendant failed to pay or deny the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, despite the untimely denials, defendant was not precluded from asserting the defense that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [*2][1997]).

Defendant's submissions, which included an affidavit of defendant's claims specialist and a copy of the transcript of the examination under oath of plaintiff's assignor, were sufficient to support its allegations of fraud, and 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 [*3]
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 should have been denied by the court below.

Pesce, P.J., and Belen, 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 BELEN, JJ.
JEFFREY I. RUBIN, PHD PSYC. SVCS., PC,
Assignee of ELSIE PLAISIMOND,
ELSIE PLAISMOND, ELSIE PLCUSMOND
and ELSIE PLAISMOND,

Respondent,

-against-
UTICA MUTUAL INS. CO.,

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: December 30, 2005