April 22, 2005

Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50606(U))

https://www.beynensonlaw.com/case-law/ocean-diagnostic-imaging-p-c-v-new-york-cent-mut-fire-ins-co-2005-nyslipop-50606u/

Court: Appellate Term, Second Department
Decided: April 22, 2005
Citation: 2005 NY Slip Op 50606(U)
Posture: Summary judgment
Outcome: Insurer prevailed
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 50606(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 accident analysis report and supporting affidavit raised a coverage issue despite its untimely denial. The provider established a prima facie claim under Insurance Law § 5106 (a). The insurer neither paid nor denied within the 30-day period under 11 NYCRR 65-3.8 (c), and did not adequately establish a timely verification request extending that period under 11 NYCRR 65-3.5 (a) and (b). Nevertheless, the defense that the injuries were causally unrelated to the accident was not precluded. The reconstructionist's affidavit and low-impact study established a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, reversed, denied the provider's summary judgment motion, and remanded for further proceedings.

Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50606(U))

[*1]

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

2005 NYSlipOp 50606(U)

Decided on April 22, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2004-563 K C

Ocean Diagnostic Imaging P.C., a/a/o ALEX KATZ, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal by defendant from an order of the Civil Court, Kings County (S. Hinds-Radix, J.), entered March 18, 2004, which granted plaintiff’s motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment denied and matter remanded to the court below for all further proceedings.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, setting forth the fact and the [*2]
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]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), and did not adequately establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65-3.5 [a], [b]), it was 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 were causally unrelated to the accident, despite the untimely denial of the claim (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 the “low impact study”), accompanied by an affidavit of the technical consultant/accident reconstructionist who prepared the report, 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., 90 NY2d at 199). Accordingly, 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 should not have been granted and the matter is remanded for further proceedings.
Decision Date: April 22, 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)

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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 an accident analysis (low impact) report with the reconstructionist's affidavit sufficient to show a founded belief that the injuries were causally unrelated to the accident, raising a triable coverage issue and requiring denial of the provider's motion.

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, 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 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 1,063 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.
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.

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 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, 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.