December 15, 2004

Ocean Diagnostic Imaging P.C. v Eagle Ins. Co. (2004 NY Slip Op 51640(U))

https://www.beynensonlaw.com/case-law/ocean-diagnostic-imaging-p-c-v-eagle-ins-co-2004-ny-slip-op-51640u/

Court: Appellate Term, Second Department
Decided: December 15, 2004
Citation: 2004 NY Slip Op 51640(U)
Posture: Summary judgment
Outcome: Insurer 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 Eagle Ins. Co., 2004 NY Slip Op 51640(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 investigator affidavit and the assignor's EUO raised a triable issue whether the injuries arose from a covered accident. The provider established submission of a claim and overdue payment under Insurance Law § 5106 (a). Although the insurer failed to pay or deny within 30 days under 11 NYCRR 65.15 (g) (3), the coverage defense survived preclusion under Central Gen. Hosp. v Chubb Group of Ins. Cos. The insurer's evidence supported a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion.

Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v Eagle Ins. Co. (2004 NY Slip Op 51640(U))

[*1]

Ocean Diagnostic Imaging P.C. v Eagle Ins. Co.

2004 NY Slip Op 51640(U)

Decided on December 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-426 N C

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o JACQUES EXAMAR, Appellant,
against
EAGLE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the District Court, Nassau County (S. Jaeger, J.), entered December 15, 2003, which denied its motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim form, 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]; see 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).
Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, defendant was not precluded from asserting the defense that the alleged injuries did not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The affidavit submitted by defendant’s investigator supported by the examination under oath of plaintiff’s assignor was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do [] not rise out of an insured incident” (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199). Accordingly, since defendant [*2]demonstrated 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 577 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: December 15, 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)

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Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Founded belief shown; the question must be tried

Held the investigator's affidavit supported by the assignor's examination under oath sufficient to show a founded belief that the injuries did not arise from an insured incident, raising a triable coverage issue that defeated the provider's motion.

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, 102 (this one included) are in the same category.

Claimant's prima facie case on motions

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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 case by proof that it submitted a claim form setting forth the fact and amount of loss and that payment was overdue.

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

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.
Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.

Cited by

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.

Similar decisions

Ocean Diagnostic Imaging P.C. v AIU Ins. Co. (2005 NY Slip Op 52200(U))The insurer's investigator affidavit raised a triable issue whether the alleged injuries arose from a covered accident despite untimely denials.
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 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, 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 State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 50454(U))The insurer's investigator affidavit raised a triable coverage issue based on suspected collision fraud despite an untimely denial.