July 2, 2007

Inwood Hill Med. P.C. v Utica Mut. Ins. Co. (2007 NY Slip Op 51309(U))

Headnote

The court considered that the defendant did not deny the subject claims within the 30-day timeframe required by law. As a result, the defendant was precluded from asserting any statutory defenses, defenses predicated upon breach of conditions precedent or policy exclusion, or a defense of provider fraud based on fraudulent billing practices. The main issue decided was whether the defendant's untimely denial of the claims precluded them from asserting any statutory defenses or policy exclusions. The holding of the court was that the defendant's untimely denial did preclude them from asserting these defenses, and as a result, the plaintiffs' motion for summary judgment was granted in the principal amount of $21,913.39.

Reported in New York Official Reports at Inwood Hill Med. P.C. v Utica Mut. Ins. Co. (2007 NY Slip Op 51309(U))

Inwood Hill Med. P.C. v Utica Mut. Ins. Co. (2007 NY Slip Op 51309(U)) [*1]

Inwood Hill Med. P.C. v Utica Mut. Ins. Co.

2007 NY Slip Op 51309(U) [16 Misc 3d 130(A)]

Decided on July 2, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McCOOE, J.P., SCHOENFELD, HEITLER, JJ
570095/07.

Inwood Hill Medical P.C., Westchester Neurodiagnostic PC, and New Psychology P.C. a/a/o Angelita Rosario, individually and as mother of Jonathan Ramirez and Jessica Ramirez, Plaintiffs-Appellants, – –
against
Utica Mutual Insurance Company, Defendant-Respondent.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Eileen A. Rakower, J.), dated August 15, 2005, which denied their motion for summary judgment.

Per Curiam.

Order (Eileen A. Rakower, J.), dated August 15, 2005, reversed, with $10 costs, and plaintiffs’ motion for summary judgment granted in the principal amount of $21,913.39.

In opposition to plaintiffs’ prima facie showing of entitlement to summary judgment, defendant failed to raise any triable issues of fact. Inasmuch as it is undisputed that defendant did not timely deny the subject claims within 30 days of receipt thereof (see 11 NYCRR 65-3.8 [c]), it is precluded from asserting any statutory defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), defenses predicated upon breach of conditions precedent or policy exclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), or a defense of provider fraud based on fraudulent billing practices (see Valley Psychological, P.C. v Liberty Mut. Ins. Co., 30 AD3d 718, 719 [2006]).

While an untimely denial does not preclude a defense based on lack of coverage, defendant’s documentary submissions were insufficient to raise issues of fact as to whether the alleged injuries arose out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199) or whether the accident was an intentional collision in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins., 293 AD2d 751 [2002]).

We have considered defendant’s remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 2, 2007