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April 22, 2005

Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co. (2005 NYSlipOp 50611(U))

https://www.beynensonlaw.com/case-law/ocean-diagnostic-imaging-p-c-v-utica-mut-ins-co-2005-nyslipop-50611u/

Court
Appellate Term, Second Department
Decided
April 22, 2005
Citation
2005 NY Slip Op 50611(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 Utica Mut. Ins. Co., 2005 NY Slip Op 50611(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 raised a factual issue as to whether the collision furthered an insurance fraud scheme despite its late denial. The provider established its prima facie entitlement to summary judgment under Insurance Law § 5106 (a) by proving submission of its claim and overdue payment. The insurer denied the claim more than two months after receipt, and its EUO requests did not toll the 30-day determination period because the applicable regulations did not authorize EUOs. Nevertheless, the fraud defense was not precluded. The claims representative's affidavit demonstrated a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion.

Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co. (2005 NYSlipOp 50611(U))

[*1]
Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co.
2005 NYSlipOp 50611(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This opinion is uncorrected and will not be published in the printed Official Reports.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: April 22, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PATTERSON, J.P., GOLIA and RIOS, JJ.
2004-813 K C
Ocean Diagnostic Imaging P.C. a/a/o Marie Ceasar, Appellant,

against

Utica Mutual Insurance Company, Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered April 1, 2004, as denied its motion for summary judgment.

Order insofar as appealed from 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, 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]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is uncontroverted that defendant denied plaintiff’s claim more than two months after it received said claim. Contrary to defendant’s contention, however, its requests for examinations under oath did not toll the 30-day claim determination period inasmuch as the insurance regulations in effect at the time lacked a provision entitling an insurer to an examination under oath (see King’s Med. Supply v Kemper Auto & Home Ins. Co., 3 Misc 3d 131[A], 2004 NY Slip Op 50401[U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. PLLC v State Farm Mut. Auto Ins. Co., 4 Misc 3d 141[A], 2004 NY Slip Op 51031[U] [App Term, 9th & 10th Jud [*2]Dists]).

Nevertheless, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite its untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit of defendant’s claims representative was sufficient to demonstrate that defendant’s denial 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]). Consequently, an issue of fact exists and the court below properly denied plaintiff’s motion for summary judgment.
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)

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 the claims representative's affidavit sufficient to show a founded belief that the collision was in furtherance of an insurance fraud scheme, raising an issue of fact that defeated the provider's summary judgment motion.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 16
  • Appellate TermApp Term 171
  • Trial courtsTrial 46
2011, Court of Appeals: 1 decision (1 Defense not shown)2023, Appellate Division: 1 decision (1 Defense established)2022, Appellate Division: 1 decision (1 Defense established)2016, Appellate Division: 1 decision (1 Insurer's motion fails)2015, Appellate Division: 1 decision (1 Insurer's motion fails)2009, Appellate Division: 1 decision (1 Defense not shown)2008, Appellate Division: 1 decision (1 Defense not shown)2007, Appellate Division: 3 decisions (2 Triable issue, 1 Defense not shown)2006, Appellate Division: 1 decision (1 Insurer's motion fails)2005, Appellate Division: 2 decisions (2 Defense not shown)2004, Appellate Division: 3 decisions (3 Defense not shown)2026, Appellate Division: 1 decision (1 Defense not shown)2021, Appellate Term: 1 decision (1 Insurer's motion fails)2019, Appellate Term: 4 decisions (2 Defense established, 1 Triable issue, 1 Insurer's motion fails)2018, Appellate Term: 5 decisions (4 Defense established, 1 Triable issue)2017, Appellate Term: 8 decisions (2 Defense established, 2 Triable issue, 3 Insurer's motion fails, 1 Defense not shown)2016, Appellate Term: 1 decision (1 Insurer's motion fails)2015, Appellate Term: 2 decisions (2 Defense established)2014, Appellate Term: 1 decision (1 Defense established)2012, Appellate Term: 3 decisions (2 Defense established, 1 Defense not shown)2011, Appellate Term: 4 decisions (2 Triable issue, 2 Insurer's motion fails)2010, Appellate Term: 2 decisions (1 Defense established, 1 Triable issue)2009, Appellate Term: 13 decisions (5 Defense established, 5 Triable issue, 3 Defense not shown)2008, Appellate Term: 9 decisions (3 Triable issue, 6 Defense not shown)2007, Appellate Term: 23 decisions (13 Triable issue, 2 Insurer's motion fails, 8 Defense not shown)2006, Appellate Term: 30 decisions (21 Triable issue, 9 Defense not shown)2005, Appellate Term: 37 decisions (1 Defense established, 24 Triable issue, 12 Defense not shown)2004, Appellate Term: 22 decisions (16 Triable issue, 6 Defense not shown)2003, Appellate Term: 1 decision (1 Defense not shown)2024, Appellate Term: 1 decision (1 Insurer's motion fails)2025, Appellate Term: 2 decisions (1 Defense established, 1 Insurer's motion fails)2013, Appellate Term: 1 decision (1 Defense established)2023, Appellate Term: 1 decision (1 Triable issue)2023, Trial courts: 2 decisions (2 Insurer's motion fails)2020, Trial courts: 1 decision (1 Insurer's motion fails)2019, Trial courts: 3 decisions (1 Defense established, 1 Triable issue, 1 Defense not shown)2016, Trial courts: 1 decision (1 Insurer's motion fails)2013, Trial courts: 1 decision (1 Triable issue)2011, Trial courts: 2 decisions (2 Defense not shown)2010, Trial courts: 2 decisions (1 Triable issue, 1 Defense not shown)2008, Trial courts: 5 decisions (1 Defense established, 2 Triable issue, 2 Defense not shown)2007, Trial courts: 3 decisions (1 Defense established, 2 Triable issue)2006, Trial courts: 7 decisions (2 Defense established, 5 Defense not shown)2005, Trial courts: 7 decisions (1 Defense established, 6 Defense not shown)2004, Trial courts: 5 decisions (5 Defense not shown)2026, Trial courts: 6 decisions (2 Defense established, 3 Triable issue, 1 Insurer's motion fails)2014, Trial courts: 1 decision (1 Defense not shown)This decision
20052010201520202025
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

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 made its prima facie showing by proof that it submitted a claim setting forth the fact and amount of loss and that payment was overdue, shifting the burden to the insurer.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 81
  • Appellate TermApp Term 843
  • Trial courtsTrial 139
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 16 decisions (13 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 15 decisions (9 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
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

A label shows how this decision treated the case it cites.

  • Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359) FollowedThe 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)) FollowedA provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
  • King’S Med. Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50401(U)) FollowedAn insurer cannot deny a claim for EUO nonappearance under the former regulation by invoking a policy's cooperation clause.
  • A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51031(U)) FollowedThe providers' ambiguous billing affidavit failed to establish a prima facie case, but the insurer also failed to obtain dismissal.

Cited by

A label shows how the later decision treated this one.

  • East Acupuncture, P.C. v Electric Ins. Co. (2007 NY Slip Op 51281(U)) FollowedThe insurer's late denials did not bar its coverage defense, and its evidence raised a triable issue of a staged incident.

Similar decisions

  • 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. (2004 NY Slip Op 51251(U))The insurer raised a triable insurance fraud coverage defense despite ineffective EUO requests and 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 New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50606(U))The insurer's accident analysis report and supporting affidavit raised a coverage issue despite its untimely denial.
  • Ocean Diagnostic Imaging, P.C. v Utica Mut. Ins. Co. (2005 NYSlipOp 51745(U))The insurer's untimely examination requests failed to toll its denial deadline, and its staged-accident defense lacked admissible proof.
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