June 28, 2006
Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 51275(U))
https://www.beynensonlaw.com/case-law/ocean-diagnostic-imaging-p-c-v-state-farm-mut-auto-ins-co-2006-ny-slip-op-51275u/
- Decided
- June 28, 2006
- Citation
- 2006 NY Slip Op 51275(U) · 12 Misc 3d 137(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
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.
Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 51275(U))
| Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. |
| 2006 NY Slip Op 51275(U) [12 Misc 3d 137(A)] |
| Decided on June 28, 2006 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
2005-1664 N C.
against
State Farm Mutual Automobile Insurance Company, Respondent.
Appeal from an order of the District Court of Nassau County, Third District (Randy Sue Marber, J.), dated September 28, 2005. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Order reversed without costs, defendant’s motion for summary judgment denied, plaintiff’s cross motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees. [*2]
Plaintiff commenced this action to recover first-party no-fault benefits for medical services rendered to its assignors. Thereafter, defendant moved for summary judgment dismissing the complaint alleging that the accident was fraudulent. Plaintiff opposed the motion and cross-moved for summary judgment. By order dated September 28, 2005, the court below granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
In the court below and on appeal, defendant argues that plaintiff had no standing to bring the instant action since the assignment of benefits forms were defective. However, since defendant did not timely object to the completeness of the forms or seek verification of the assignments, it waived any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).
It is uncontroverted that defendant untimely denied the claims. However, it is well settled that a defendant is not precluded from asserting the defense that a collision was in furtherance of an insurance fraud scheme, despite its untimely denial (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). Contrary to the determination of the court below, we find that the affidavit submitted by defendant’s investigator was insufficient to demonstrate that defendant’s denial 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]). Consequently, defendant failed to demonstrate 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]).
Accordingly, the order of the court below is reversed, defendant’s motion for summary judgment is denied, plaintiff’s cross motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 28, 2006
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.
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 investigator affidavit insufficient to show a founded belief that the collision was a staged insurance fraud scheme, so the insurer's summary judgment was reversed and the provider's cross motion granted.
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.
Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?
This decision: Insurer barred from contesting the assignment because it did not timely object, verify, deny or plead on that ground (rules on the question, but another ground decided the case)
Rejected the insurer's lack-of-standing argument based on defective assignment forms because the insurer did not timely object to the completeness of the forms or seek verification of the assignments, waiving any defense based on them.
Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 48 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Hospital for Joint Diseases v Allstate Ins. Co. (2005 NY Slip Op 06192) FollowedAn insurer waived assignment objections by failing to timely object to hospital forms or seek verification of the assignments.
- 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.
- A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co. (2004 NY Slip Op 24506)The providers' billing manager affidavit failed to establish submission of properly completed claim forms.
Similar decisions
- 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.
- Ocean Diagnostic Imaging, Inc. v Utica Mut. Ins. Co. (2005 NY Slip Op 50081(U))The insurer's claims-specialist affidavit raised a triable coverage issue based on a founded belief that the collision involved fraud.
- Ocean Diagnostic Imaging, P.C. v Geico Ins. (2004 NY Slip Op 51038(U))The insurer's attorney affidavit lacked personal knowledge and offered only conclusory fraud allegations, failing to raise a coverage issue.
- 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.