February 17, 2005

Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2005 NY Slip Op 50189(U))

https://www.beynensonlaw.com/case-law/ocean-diagnostic-imaging-p-c-v-allstate-ins-co-2005-ny-slip-op-50189u/

Court: Appellate Term, Second Department
Decided: February 17, 2005
Citation: 2005 NY Slip Op 50189(U)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Staged accidents, lack of coverage Timeliness and preclusion
Legal questions: No covered accident (founded belief) · Claimant's prima facie case on motions (see the maps)

Cite as

Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 2005 NY Slip Op 50189(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2005)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's conclusory submissions failed to raise a triable issue of staged-accident fraud. The provider established submission of its claim and overdue payment under Insurance Law § 5106 (a). The insurer failed to pay or deny within 30 days or demonstrate a toll, precluding defenses other than those surviving untimeliness. Its coverage defense remained available, but required a fact or founded belief that the injuries did not arise from an insured incident. Counsel's affirmation lacked personal knowledge and contained unsubstantiated hearsay; the claims representative merely asserted that a file review revealed staging. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment.

Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2005 NY Slip Op 50189(U))

[*1]

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

2005 NY Slip Op 50189(U)

Decided on February 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 17, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: February 17, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-540 N C

Ocean Diagnostic Imaging P.C., as ASSIGNEE OF HERBERT McQUEEN, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal by defendant from an order of the District Court, Nassau County (S. Yeager, J.), entered February 17, 2004, which granted plaintiff’s motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover $2,670.40 in assigned 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 form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; 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]). Defendant’s failure to pay or deny the claim within the prescribed 30-day period, or to demonstrate that said period had been tolled, precludes defendant from interposing most defenses to the action (Insurance Law § 5106 [a]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]; A.B. Med. Servs. v USAA Cas. Ins. Co., 6 Misc 3d 126[A] 2004 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists]; Diagnostic Rehab. Med. Servs. v Travelers Indem. Co., ___ Misc 3d ___, [*2]2004 NY Slip Op 24505 [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A], 2004 NY Slip Op 50471[U] [App Term, 2d & 11th Jud Dists]). However, defendant was not precluded from asserting the defense that the alleged injuries did not arise out of a covered accident (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]; Ocean Diagnostic Imaging v Eagle Ins. Co., 5 Misc 3d 139[A], 2004 NY Slip Op 51640[U] [App Term, 9th & 10th Jud Dists]) which, if substantiated, would constitute a complete defense to the action (Matter of Government Empls. Ins. Co. v Shaulskaya, 302 AD2d 522 [2003]).

To interpose a defense of staged-accident fraud sufficient to raise a triable issue of fact, defendant must establish “the fact or 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]; Ocean Diagnostic Imaging v Eagle Ins. Co., 5 Misc 3d 139[A], 2004 NY Slip Op 51640[U], supra). The facts alleged in an entirely conclusory fashion in the attorney’s affirmation in opposition to the summary judgment motion were not based on counsel’s personal knowledge and, as unsubstantiated hearsay, were clearly of no probative value (Penny v Pembrook Mgt., 280 AD2d 590, 591 [2001]; Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists]). The bare conclusory statement in a claims representative’s affidavit, that her file review “reveal[ed] that based upon Allstate’s investigation of this claim, [assignor] engaged in staging a fraudulent accident,” merited the lower court’s determination that defendant failed to interpose a triable issue of fraud (id.; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th [*3]
Jud Dists 2004]; A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8, 9-10 [App Term, 9th & 10th Jud Dists 2003]).
Decision Date: February 17, 2005

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No covered accident (founded belief)

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Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Insurer's proof did not raise an issue or failed at trial; provider prevails on it

Held the insurer failed to raise a triable staged-accident issue because counsel's affirmation lacked personal knowledge and the claims representative's statement that investigation revealed a staged accident was conclusory, so summary judgment for the provider was affirmed.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 80 (this one included) are in the same category.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the provider established its prima facie case by proof that it submitted a claim form setting forth the fact and amount of loss and that payment was overdue.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.

Cited in this decision

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Damadian Mri In Elmhurst v Liberty Mut. Ins. Co. (2003 NY Slip Op 51700(U))A provider need not submit additional medical-necessity evidence to obtain summary judgment when the insurer is precluded from that defense.
A.B. Med. Servs. PLLC v USAA Cas. Ins. Co. (2004 NY Slip Op 51682(U))The provider proved mailing of one claim, while the insurer failed to prove mailing of IME notices supporting two other denials.
Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co. (2004 NY Slip Op 24505)The insurer waived the assignment defect by neither seeking additional verification nor identifying the deficiency in its denial.
Amaze Med. Supply v Colonial Penn Ins. Co. (2004 NY Slip Op 50471(U))A factual affidavit is not rendered defective merely because a nonattorney affiant includes two case citations in a footnote.
Ocean Diagnostic Imaging P.C. v Eagle Ins. Co. (2004 NY Slip Op 51640(U))The insurer's investigator affidavit and the assignor's EUO raised a triable issue whether the injuries arose from a covered accident.
Amstel Chiropractic v Omni Indem. Co. (2004 NY Slip Op 50088(U))The providers obtained summary judgment because EUOs were unauthorized under the applicable regulations and fraud was unsupported.
Melbourne Med., P.C. v Utica Mut. Ins. Co. (2004 NY Slip Op 24221)EUO requests do not toll the claim determination period when the governing no-fault regulations do not authorize EUO verification.
A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U))The insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
A.B. Med. Servs. v Eagle Ins. Co. (2003 NY Slip Op 23978)The insurer's investigator's affidavit failed to raise a triable issue that the collision was staged.

Cited by

A label shows how the later decision treated this one.

Webster Diagnostic Medicine, P.C. v State Farm Ins. Co. (2007 NY Slip Op 27134) FollowedThe insurer's conclusory fraud allegations and passenger EUO discrepancies failed to establish a founded belief of noncoverage.
Comprehensive Mental v Allstate Ins. Co. (2007 NY Slip Op 50017(U)) FollowedThe provider's summary judgment motion was granted because the insurer's affidavit did not raise a triable staged-accident coverage issue.
Star Med. Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 50129(U)) FollowedThe insurer's EUO and staged-collision defenses lacked sufficient proof to defeat the provider's summary judgment motion.
A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2005 NY Slip Op 25456)The providers obtained partial summary judgment because defective EUO requests and incomplete IME follow-up failed to toll denial time.
V.S. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 26000)An insurer asserting a staged collision at trial need only rebut presumed coverage; the provider retains the burden of persuasion.
Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 50493(U))The insurer's evidence failed to establish a founded belief that the assignor's injuries arose from a staged accident.
Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (2005 NYSlipOp 51745(U))The insurer's untimely examination requests failed to toll its denial deadline, and its staged-accident defense lacked admissible proof.
Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (2005 NY Slip Op 51747(U))The insurer's untimely EUO request did not toll its denial deadline, and its staged-accident defense lacked admissible proof.
Amaze Med. Supply, Inc. v Utica Mut. Ins. Co. (2009 NY Slip Op 52690(U))The insurer's submissions supported a founded belief that the alleged injuries did not arise out of an insured incident.

Similar decisions

Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51032(U))The insurer's investigator raised a triable staged-collision coverage issue despite the provider's adequate billing proof.
Ocean Diagnostic Imaging P.C. v Eagle Ins. Co. (2005 NYSlipOp 51027(U))The provider's summary judgment motion was granted despite the insurer's asserted founded belief that the collision was staged.
Ocean Diagnostic Imaging P.C. v AIU Ins. Co. (2005 NY Slip Op 50188(U))The insurer's unsworn investigator's report did not supply admissible evidence supporting its staged-accident defense.
Ocean Diagnostic Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51624(U))An insurer's untimely denial does not preclude a defense that the collision furthered an insurance fraud scheme.
Ocean Diagnostic Imaging P.C. v Travelers Indem. Co. (2005 NY Slip Op 50644(U))The insurer's proof failed to establish a founded belief that the collision was part of an insurance fraud scheme.