June 2, 2005

Diagnostic Rehab. Medicine Serv., P.C. v Farm Family Cas. Ins. Co. (2005 NYSlipOp 50826(U))

Headnote

The court considered the fact that the plaintiff had not received a timely denial of their claim for no-fault benefits from the defendant insurance company, as required by Insurance Law § 5106(a). The main issue was whether the defendant had waived any defenses related to the medical necessity of the treatment and the sufficiency of the patient's assignment of benefits. The holding of the court was that the plaintiff was entitled to summary judgment on the complaint, as the defendant had waived defenses and failed to raise an issue of fact regarding the denial of coverage. The court reversed the order denying the plaintiff's motion for summary judgment, granted the motion, and remanded the matter to Civil Court for the assessment of appropriate attorney's fees and interest, as well as the entry of a judgment in favor of the plaintiff.

Reported in New York Official Reports at Diagnostic Rehab. Medicine Serv., P.C. v Farm Family Cas. Ins. Co. (2005 NYSlipOp 50826(U))

Diagnostic Rehab. Medicine Serv., P.C. v Farm Family Cas. Ins. Co. (2005 NYSlipOp 50826(U)) [*1]

Diagnostic Rehab. Medicine Serv., P.C. v Farm Family Cas. Ins. Co.

2005 NYSlipOp 50826(U)

Decided on June 2, 2005

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2005

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. PHYLLIS GANGEL-JACOB, Justices.

Diagnostic Rehab. Medicine Serv., P.C., Assignee of Julio Duran, Plaintiff-Appellant, 570292/04
against
Farm Family Casualty Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court, Bronx County, entered November 20, 2003 (Irving Rosen, J.) denying its motion for summary judgment.

PER CURIAM:

Order entered November 20, 2003 (Irving Rosen, J.) reversed, with $10 costs, plaintiff’s motion for summary judgment is granted and the matter is remanded to Civil Court for (1) the assessment of appropriate attorney’s fees and interest pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder, and (2) the entry of a judgment in favor of plaintiff and against defendant in the principal sum of $2,321.38, plus appropriate interest and attorney’s fees.

Plaintiff was entitled to summary judgment on the complaint inasmuch as defendant insurance company did not timely deny plaintiff’s claim for no-fault benefits within 30 days after proof of claim was received (see Insurance Law § 5106[a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Under the circumstances, defendant insurer [*2]waived any defenses relating to the medical necessity of the treatment rendered (Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]) as well as to the facial sufficiency of the patient’s assignment of no-fault benefits submitted by plaintiff (Presbyterian Hosp. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996], lv dismissed 89 NY2d 1030 [1997]).

Furthermore, defendant failed to raise an issue of fact as to whether defendant’s denial of coverage was “premised on the fact or founded belief that the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 8 AD3d 250 [2004]; Mt. Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]).

This constitutes the decision and order of the court.
Decision Date: June 02, 2005