May 28, 2004

Ocean Diagnostic Imaging v Geico Ins. (2004 NY Slip Op 50511(U))

https://www.beynensonlaw.com/case-law/ocean-diagnostic-imaging-v-geico-ins-2004-ny-slip-op-50511u/

Court: Appellate Term, Second Department
Decided: May 28, 2004
Citation: 2004 NY Slip Op 50511(U)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Distinguished in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Verification requests
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Ocean Diagnostic Imaging v Geico Ins., 2004 NY Slip Op 50511(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 EUO requests did not toll the 30-day denial period because the applicable regulation did not require EUOs. The provider established its prima facie entitlement to assigned no-fault benefits through proper proof of the claim and amount of loss under Insurance Law § 5106 (a). The insurer acknowledged receipt but denied the claim more than 30 days later, contrary to former 11 NYCRR 65.15 (g) (3), and raised no triable issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for calculation of statutory interest and assessment of attorney's fees.

Reported in New York Official Reports at Ocean Diagnostic Imaging v Geico Ins. (2004 NY Slip Op 50511(U))

[*1]

Ocean Diagnostic Imaging v Geico Ins.

2004 NY Slip Op 50511(U)

Decided on May 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 28, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

PRESENT:McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2003-1076 N C

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o HIRAM IRIZARRY, Appellant,
against
GEICO INSURANCE, Respondent.

Appeal by plaintiff from so much of an order of District Court, Nassau County (H. Miller, J.), dated May 9, 2003, as denied its motion for summary judgment.

Order, insofar as appealed from, unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded for the calculation of statutory interest and an assessment of attorney’s fees.

In this action seeking assigned first-party no-fault benefits, plaintiff health service provider established a prima facie entitlement to summary judgment by the submission of proper proof of the claim and the amount of the loss (see Insurance Law § 5106 [a]; Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Defendant has failed to raise any triable
issues of fact. Defendant acknowledges receiving plaintiff’s proof of claim on August 15, 2001, and did not send its denial of the claim until November 17, 2001, well beyond the 30-day period within which it was required to pay or deny the claim (11 NYCRR 65.15 [g] [3]). Defendant’s requests for examinations under oath did not serve to toll the 30-day period, since the applicable insurance regulation did not contain provisions requiring a claimant to submit to examinations under oath (see A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Bronx Med. Servs. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]). Accordingly, plaintiff’s motion for summary judgment should have been granted (see King’s Med. Supply, Inc. v Progressive Ins., Co., 2004 NY Slip 50311 [U] [App [*2]Term, 2nd & 11th Jud Dists]), and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: May 28, 2004

Legal questions

A question 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.

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 prima facie entitlement to summary judgment by proper proof of the claim and amount of loss, and the insurer, which acknowledged receipt but denied late, raised no triable issue.

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 by

A label shows how the later decision treated this one.

Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 24356) DistinguishedThe EUO regulation applies to claims filed after its effective date under policies issued and effective after September 1, 2001.
West Tremont Med. Diagnostics, P.C. v GEICO (2005 NY Slip Op 25176)The insurer failed to prove lack of medical necessity where its expert confirmed that the diagnostic center did not decide which tests to order.
S & M Supply Inc. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51250(U))The insurer's founded belief in a staged collision defeated summary judgment, although its EUO nonappearance defense was precluded.

Similar decisions

Ocean Diagnostic Imaging, P.C. v Geico Ins. (2004 NY Slip Op 51038(U))The insurer's attorney affidavit lacked personal knowledge and offered only conclusory fraud allegations, failing to raise a coverage issue.
Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co. (2004 NY Slip Op 51041(U))The insurer's EUO request and nonspecific investigation letters did not toll the 30-day period for paying or denying the provider's claim.
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 AIU Ins. Co. (2005 NY Slip Op 50188(U))The insurer's unsworn investigator's report did not supply admissible evidence supporting its staged-accident defense.
Ocean Diagnostic Imaging v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 50510(U))An EUO request did not toll the insurer's 30-day denial period under the regulations then in effect.