October 13, 2006

Bronx Expert Radiology, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51992(U))

https://www.beynensonlaw.com/case-law/bronx-expert-radiology-p-c-v-allstate-ins-co-2006-ny-slip-op-51992u/

Court: District Court of Nassau County, Third District
Judge: Chaikin, J.
Decided: October 13, 2006
Citation: 2006 NY Slip Op 51992(U) · 13 Misc 3d 1226(A)
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

Bronx Expert Radiology, P.C. v Allstate Ins. Co., 13 Misc 3d 1226(A), 2006 NY Slip Op 51992(U) (Dist Ct, Nassau County, 3d Dist 2006)

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 investigator affidavit and EUO transcripts failed to establish a founded belief that the collision was staged. The provider established an overdue MRI claim under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). Under Central General Hosp. v Chubb Group of Ins. Cos., an untimely denial does not preclude a lack-of-coverage defense, but admissible evidence must establish its factual foundation. The investigator referred to undisclosed information suggesting intentional conduct and relied on alleged inconsistencies in the EUOs. The District Court, Nassau County, found those transcripts insufficient to raise a triable issue and granted the provider summary judgment, with interest and attorney's fees under 11 NYCRR 65-3.9 (a) and 65-4.6 (e).

Reported in New York Official Reports at Bronx Expert Radiology, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51992(U))

[*1]

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

2006 NY Slip Op 51992(U) [13 Misc 3d 1226(A)]

Decided on October 13, 2006

District Court Of Nassau County, Third District

Chaikin, J.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2006

District Court of Nassau County, Third District

Bronx Expert Radiology, P.C., Assignee of Claribel Feliz, Plaintiff
against
Allstate Insurance Company, Defendant.

3901/04

Bonnie P. Chaikin, J.

In this action for recovery of assigned first party no-fault benefits, plaintiff moves for an order pursuant to CPLR §3212, granting summary judgment in its favor against the defendant. For the reasons set forth below, the motion is granted.

In this type of action, plaintiff establishes a prima facie entitlement to summary judgment by proof that it submitted a claim, 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]; 11 NYCRR 65.15 [g][3]; 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]; A. B. Medical Services, PLLC v. Lumbermens Casualty Co., 4 Misc 3d 86, 781 NYS2d 818 [S Ct NY App Term 2004]).

In this case, it is undisputed that the bill for an MRI in the sum of $879.73 was received by the defendant on May 24, 2004, and that the denial was dated November 1, 2004. (See NF-10 annexed to the moving papers.) Thus, plaintiff has established its prima facie entitlement to summary judgement in its favor.

Once the movant demonstrates a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form

sufficient to establish the existence of material issues of fact that would require a plenary trial of

the action (see, Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]).

In opposition to this motion, defendant alleges that the claim was denied because it arose from a staged event. It supports this allegation with an attorney’s affirmation, an affidavit by Allstate special investigator Susan Denicola, as well as copies of the EUO transcripts of the assignor and her passenger in the vehicle at the time of the accident.

It is now well established that an untimely denial of claim will not preclude a lack of [*2]coverage defense premised on the fact or founded belief that the alleged injury did not arise out of an insured incident (Central General Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195, 659 NYS2d 246 [1997]). However, the insurer must do more than simply allege that it has a well founded belief. As the Court explained in Mount Sinai v Triboro Coach Inc., 263 AD2d 11, 699 NYS2d 77 (2d Dept 1999), the burden is on the insurer “to come forward with proof in admissible form to establish the fact’ or the evidentiary found[ation for its] belief. Applying these principles to the case at bar, it is clear that the burden is on Allstate to come forward with proof in admissible form to establish the fact or the evidentiary foundation for its belief that the instant claim arose from a staged incident rather than a covered accident. Based upon the documents submitted, defendant fails in this regard.

The sworn statement of special investigator Denicola alludes to “information … acquired

that indicates the possibility that the accident was intentionally caused to defraud insurance companies, in general, and Allstate, in particular”, but Investigator Denicola fails to reveals such information.She relies wholly upon the EUOs annexed to the opposition papers, pointing to their inconsistencies and alleged deficiencies.

The court has read both EUOs and is not persuaded that they support a finding that the accident at issue was a staged incident.

Accordingly, the court finds that defendant has failed to come forward with proof in admissible form to show either a staged event or raise a material issue of fact that would necessitate a denial of this motion. There being no triable issues of fact regarding the defendant’s failure to pay or properly deny plaintiff’s claim within thirty days of receipt of said claim, summary judgment is granted in favor of the plaintiff.

The plaintiff is awarded the sum of $879.73, together with interest at the statutory rate of 2% per month from June 24, 2004, plus attorneys fees equal to 20% thereof, not to exceed $850.00. [Insurance Law §5106(a); 11 NYCRR §65-3.9 (a) and ] and 11 NYCRR §65-4.6(e)].

The foregoing constitutes the Decision and Order of this Court.

So Ordered:

____________________________

District Court Judge

Dated:October 13, 2006

cc:Israel, Israel & Purdy, LLP

Stern & Montana, LLP

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 investigator affidavit, which withheld the information it relied on, and EUO transcripts with alleged inconsistencies did not show a staged event or raise a triable issue, so the provider's summary judgment was granted.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decision

Of the 233 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 entitlement because it was undisputed the insurer received the bill and denied it more than 30 days later.

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

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (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 Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194)An insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.

Similar decisions

Mega Supply & Billing Inc. v Allstate Ins. Co. (2005 NY Slip Op 52168(U))The insurer failed to raise a triable staged-accident defense or establish tolling of its time to deny the provider's claim.
New York Massage Therapy P.C. v State Farm Mut. Ins. Co. (2006 NY Slip Op 52573(U))The insurer failed at trial to support its staged-accident defense with admissible evidence establishing a founded belief of no coverage.
Ocean Diagnostic Imaging v Utica Mut. Ins. Co. (2004 NY Slip Op 50203(U))The insurer's late IME-nonappearance denial and unsupported fraud allegations failed to defeat the provider's summary judgment motion.
Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2005 NY Slip Op 50189(U))The insurer's conclusory submissions failed to raise a triable issue of staged-accident fraud.
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.