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September 20, 2004

Ocean Diagnostic Imaging, P.C. v Geico Ins. (2004 NY Slip Op 51038(U))

https://www.beynensonlaw.com/case-law/ocean-diagnostic-imaging-p-c-v-geico-ins-2004-ny-slip-op-51038u/

Court
Appellate Term, Second Department
Decided
September 20, 2004
Citation
2004 NY Slip Op 51038(U)
Posture
Summary judgment
Outcome
Provider prevailed
Issues
Staged accidents, lack of coverage
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 Geico Ins., 2004 NY Slip Op 51038(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2004)

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 attorney affidavit lacked personal knowledge and offered only conclusory fraud allegations, failing to raise a coverage issue. The provider established mailing and receipt of statutory claim forms and the insurer's failure to pay or deny within 30 days under Insurance Law § 5106 (a). Although a defense that injuries did not arise from a covered accident survived an untimely denial, the attorney's affidavit did not support a fact or founded belief that the injuries arose outside an insured incident. The Appellate Term, Second Department, reversed the denial of the provider's motion, granted summary judgment, and remanded for calculation of statutory interest and assessment of attorney fees.

Reported in New York Official Reports at Ocean Diagnostic Imaging, P.C. v Geico Ins. (2004 NY Slip Op 51038(U))

[*1]
Ocean Diagnostic Imaging, P.C. v Geico Ins.
2004 NY Slip Op 51038(U)
Decided on September 20, 2004
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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS


PRESENT:McCABE, P.J., COVELLO and TANENBAUM, JJ.
NO. 2003-1520 N C
OCEAN DIAGNOSTIC IMAGING, P.C. a/a/o DAVID BOYD and TRISHA S. HOUSEN, Appellant,

against

GEICO INSURANCE, Respondent.

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered on August 18, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff health care provider made out a prima facie showing of entitlement to recover no-fault benefits for services rendered to its assignors by submission of proof
that it had mailed the statutory claim forms, that defendant had received them, and that defendant did not pay or deny the claims within the 30-day statutory period (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Nyack Hosp. v State Farm Mut. Auto Ins. Co., 8 AD3d 250 [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]).

Despite its untimely denial of benefits, defendant is not precluded from asserting the [*2]defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). However, the affidavit of defendant’s attorney who had no personal knowledge of the facts, and who sets forth bare and conclusory allegations of fraud, constituted a submission in opposition to plaintiff’s motion which was insufficient to raise a triable issue of fact. Under these circumstances, the defendant’s submissions in opposition to plaintiff’s motion were insufficient to raise an issue of fact as to whether defendant’s denial of benefits was “premised on the fact or founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (id. at 199).

Accordingly, plaintiff’s motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: September 20, 2004

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)

Open the full map

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's opposition, an attorney's affidavit without personal knowledge making bare conclusory fraud allegations, did not raise an issue of fact that the injuries did not arise from a covered accident.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 16
  • Appellate TermApp Term 171
  • Trial courtsTrial 46
2011, Court of Appeals: 1 decision (1 Defense not shown)2023, Appellate Division: 1 decision (1 Defense established)2022, Appellate Division: 1 decision (1 Defense established)2016, Appellate Division: 1 decision (1 Insurer's motion fails)2015, Appellate Division: 1 decision (1 Insurer's motion fails)2009, Appellate Division: 1 decision (1 Defense not shown)2008, Appellate Division: 1 decision (1 Defense not shown)2007, Appellate Division: 3 decisions (2 Triable issue, 1 Defense not shown)2006, Appellate Division: 1 decision (1 Insurer's motion fails)2005, Appellate Division: 2 decisions (2 Defense not shown)2004, Appellate Division: 3 decisions (3 Defense not shown)2026, Appellate Division: 1 decision (1 Defense not shown)2021, Appellate Term: 1 decision (1 Insurer's motion fails)2019, Appellate Term: 4 decisions (2 Defense established, 1 Triable issue, 1 Insurer's motion fails)2018, Appellate Term: 5 decisions (4 Defense established, 1 Triable issue)2017, Appellate Term: 8 decisions (2 Defense established, 2 Triable issue, 3 Insurer's motion fails, 1 Defense not shown)2016, Appellate Term: 1 decision (1 Insurer's motion fails)2015, Appellate Term: 2 decisions (2 Defense established)2014, Appellate Term: 1 decision (1 Defense established)2012, Appellate Term: 3 decisions (2 Defense established, 1 Defense not shown)2011, Appellate Term: 4 decisions (2 Triable issue, 2 Insurer's motion fails)2010, Appellate Term: 2 decisions (1 Defense established, 1 Triable issue)2009, Appellate Term: 13 decisions (5 Defense established, 5 Triable issue, 3 Defense not shown)2008, Appellate Term: 9 decisions (3 Triable issue, 6 Defense not shown)2007, Appellate Term: 23 decisions (13 Triable issue, 2 Insurer's motion fails, 8 Defense not shown)2006, Appellate Term: 30 decisions (21 Triable issue, 9 Defense not shown)2005, Appellate Term: 37 decisions (1 Defense established, 24 Triable issue, 12 Defense not shown)2004, Appellate Term: 22 decisions (16 Triable issue, 6 Defense not shown)2003, Appellate Term: 1 decision (1 Defense not shown)2024, Appellate Term: 1 decision (1 Insurer's motion fails)2025, Appellate Term: 2 decisions (1 Defense established, 1 Insurer's motion fails)2013, Appellate Term: 1 decision (1 Defense established)2023, Appellate Term: 1 decision (1 Triable issue)2023, Trial courts: 2 decisions (2 Insurer's motion fails)2020, Trial courts: 1 decision (1 Insurer's motion fails)2019, Trial courts: 3 decisions (1 Defense established, 1 Triable issue, 1 Defense not shown)2016, Trial courts: 1 decision (1 Insurer's motion fails)2013, Trial courts: 1 decision (1 Triable issue)2011, Trial courts: 2 decisions (2 Defense not shown)2010, Trial courts: 2 decisions (1 Triable issue, 1 Defense not shown)2008, Trial courts: 5 decisions (1 Defense established, 2 Triable issue, 2 Defense not shown)2007, Trial courts: 3 decisions (1 Defense established, 2 Triable issue)2006, Trial courts: 7 decisions (2 Defense established, 5 Defense not shown)2005, Trial courts: 7 decisions (1 Defense established, 6 Defense not shown)2004, Trial courts: 5 decisions (5 Defense not shown)2026, Trial courts: 6 decisions (2 Defense established, 3 Triable issue, 1 Insurer's motion fails)2014, Trial courts: 1 decision (1 Defense not shown)This decision
20052010201520202025
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 made its prima facie showing by proof that it mailed the claim forms, that the insurer received them, and that the insurer did not pay or deny within 30 days.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 81
  • Appellate TermApp Term 843
  • Trial courtsTrial 139
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 16 decisions (13 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 15 decisions (9 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
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

  • New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 05626)The insurer failed to establish mailing of assignment-verification requests and could not defeat the hospitals' summary judgment motion.
  • Nyack Hosp. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 04304)The hospital obtained summary judgment because the insurer failed to raise admissible factual issues on causation and policy cancellation.
  • 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.

Similar decisions

  • Ocean Diagnostic Imaging v Geico Ins. (2004 NY Slip Op 50511(U))The insurer's EUO requests did not toll the 30-day denial period because the applicable regulation did not require EUOs. The provider established its prima facie entitlement to assigned no-fault benefits through proper proof of the claim and amount of loss under Insurance Law § 5106 (a).
  • Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51251(U))The insurer raised a triable insurance fraud coverage defense despite ineffective EUO requests and an untimely denial.
  • 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 New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50607(U))The insurer's accident analysis report and supporting affidavit raised a coverage issue despite its untimely denial.
  • 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.
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