April 13, 2005

Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50525(U))

https://www.beynensonlaw.com/case-law/ocean-diagnostic-imaging-p-c-v-new-york-cent-mut-fire-ins-co-2005-nyslipop-50525u/

Court: Appellate Term, Second Department
Decided: April 13, 2005
Citation: 2005 NY Slip Op 50525(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Staged accidents, lack of coverage Timeliness and preclusion Verification requests
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 New York Cent. Mut. Fire Ins. Co., 2005 NY Slip Op 50525(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2005)

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 sworn low-impact study raised a triable issue of accident-related causation despite untimely verification requests and denials. The provider established a prima facie claim under Insurance Law § 5106 (a), and the insurer's denial forms showed noncompliance with the 30-day determination period under 11 NYCRR 65-3.8 (c). Untimely verification requests did not extend that period. Nevertheless, the insurer could assert that the injuries were unrelated to the accident. The accident analysis report and reconstructionist's sworn certification were admissible, relevant to causation, and sufficient to establish a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion.

Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50525(U))

[*1]

Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co.

2005 NYSlipOp 50525(U)

Decided on April 13, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: April 13, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., RIOS and BELEN, JJ.
2004-875 K C

Ocean Diagnostic Imaging P.C., a/a/o Marie Boucard, Jumon Boucard, Christopher Boucard, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Gesmer, J.), entered on March 26, 2004, 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 assignors, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, 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]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant’s denial of claim forms indicate that defendant did not deny the claim within the statutorily prescribed 30-day period (see 11 NYCRR 65-3.8 [c]), and that its verification requests did not extend the 30-day period since such requests were untimely (11 NYCRR 65-3.8 [a], [b]). Inasmuch as defendant failed to pay or deny the claim within the 30-day period, 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 is not precluded from asserting the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The “Accident Analysis” report, referred to by defendant as a “Low Impact Study,” together with the sworn certification of the Technical Consultant/Accident Reconstructionist who prepared the report, constituted admissible evidence in support of defendant’s defense of a lack of causal [*2]nexus between the accident and the injuries claimed by plaintiff’s assignors, and was sufficient to demonstrate that the defense 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 at 199; see also Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). Contrary to plaintiff’s contention, the Accident Analysis report was relevant to the issue of causation (Valentine v Grossman, 283 AD2d 571 [2001]).

Therefore, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: April 13, 2005

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: Founded belief shown; the question must be tried

Held a sworn accident analysis (low impact study) admissible and relevant to causation and sufficient to show a founded belief that the injuries were not causally related to the accident, raising a triable coverage issue.

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. One decision in other departments that cites or is cited by this one is on the full map.

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 case by proof that it submitted claims 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.
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

A label shows how the later decision treated this one.

A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51347(U)) FollowedThe insurer's low-impact study and supporting affidavit raised a triable issue whether the claimed injuries arose from the accident.
Careplus Med. Supply Inc. v Kemper Auto & Home Ins. Co. (2005 NYSlipOp 50958(U))The insurer's sworn accident reconstruction report raised a triable issue whether the claimed injuries arose from an insured incident.
Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52250(U))The insurer's causation report was inadmissible, and curing it for the first time in sur-reply did not defeat the provider's summary judgment motion.
Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27427)The insurer's generic low-impact study failed to raise a triable issue that the assignor's injuries were unrelated to the accident.
Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51051(U))The insurer's low-impact study raised a factual issue whether the claimed injuries arose from the insured accident.

Similar decisions

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.
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 Utica Mut. Ins. Co. (2005 NYSlipOp 50611(U))The insurer raised a factual issue as to whether the collision furthered an insurance fraud scheme despite its late denial.
Ocean Diagnostic Imaging P.C. v Eagle Ins. Co. (2004 NY Slip Op 51640(U))The insurer's investigator affidavit and the assignor's EUO raised a triable issue whether the injuries arose from a covered accident.
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.