Bronx Expert Radiology, P.C. v Allstate Ins. Co.

[*1] Bronx Expert Radiology, P.C. v Allstate Ins. Co. 2007 NY Slip Op 50682(U) [15 Misc 3d 132(A)] Decided on March 28, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : McCABE, J.P., TANENBAUM and LIPPMAN, JJ
2006-966 N C.

Bronx Expert Radiology, P.C. a/a/o CARLOS BAUTISTA and ROYLAN RODRIGUEZ, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, Third District (Sharon M.J. Gianelli, J.), entered April 4, 2006, deemed an appeal from a judgment entered on April 10, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 4, 2006 order granting plaintiff's motion for summary judgment, awarded plaintiff the sum of $4,736.23.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed the motion, asserting
that it properly denied plaintiff's claims since there are questions concerning the nature of the loss and whether it arose out of an insured incident. The court below granted plaintiff's motion for summary judgment finding that defendant failed to support its claim of fraud. The instant appeal by defendant ensued.

Since defendant raised no issue in the court below or on appeal regarding plaintiff's establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

The record reveals that the assignors appeared for examinations under oath on August 24, 2004 and September 23, 2004 and that, on January 27, 2005, defendant issued denial of claim forms for the two $912 bills submitted by plaintiff. Defendant did not assert that it issued a [*2]denial of claim form for plaintiff's $879.73 bill nor did it deny receipt of said bill. 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]). Despite its untimely denial of plaintiff's claims, defendant was 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]). However, we are of the opinion that the affidavit of defendant's investigator was insufficient 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]). Accordingly, since defendant failed to raise 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]), the judgment is affirmed.

McCabe, J.P., Tanenbaum and Lippman, JJ., concur.
Decision Date: March 28, 2007