February 17, 2005

Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 50454(U))

Headnote

The court considered the fact that the plaintiff had submitted a claim for first-party no-fault benefits for medical services and that payment was overdue. The main issue decided was whether the defendant's defense of insurance fraud could be raised, despite the untimely denial of the claim. The court held that the defendant was precluded from raising most defenses due to the untimely denial of the claim, but was not precluded from asserting the defense of insurance fraud. The court found that the affidavit submitted by the defendant's special investigator was sufficient to demonstrate the existence of a triable issue of fact, and therefore the plaintiff's motion for summary judgment was properly denied.

Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 50454(U))

Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 50454(U)) [*1]

Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co.

2005 NYSlipOp 50454(U)

Decided on February 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 17, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: February 17, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-462 N C

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o SAMONE KING, Appellant,
against
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the District Court, Nassau County (J. Spinola, J.), entered December 10, 2003, which denied its motion for summary judgment.

Order unanimously affirmed with $10 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, 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]; 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]). Since defendant failed to pay or deny the claim within the 30-day statutory period (11 NYCRR 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 is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator 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 195, 199 [1997]). Accordingly, since defendant [*2]demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; see generally Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: February 17, 2005