September 20, 2004

Ocean Diagnostic Imaging, P.C. v Geico Ins. (2004 NY Slip Op 51038(U))

Headnote

The court considered the fact that the plaintiff, a health care provider, submitted proof that it had mailed statutory claim forms to the defendant, that the defendant received them, and that the defendant did not pay or deny the claims within the 30-day statutory period. The main issue decided was whether the defendant's untimely denial of benefits precluded them from asserting the defense that the alleged injuries did not arise from a covered accident. The holding of the court was that the plaintiff's motion for summary judgment was granted, and the case was remanded for the calculation of statutory interest and attorney's fees pursuant to Insurance Law. The court also determined that the affidavit of defendant's attorney, who had no personal knowledge of the facts and made bare and conclusory allegations of fraud, was insufficient to raise a triable issue of fact.

Reported in New York Official Reports at Ocean Diagnostic Imaging, P.C. v Geico Ins. (2004 NY Slip Op 51038(U))

Ocean Diagnostic Imaging, P.C. v Geico Ins. (2004 NY Slip Op 51038(U)) [*1]

Ocean Diagnostic Imaging, P.C. v Geico Ins.

2004 NY Slip Op 51038(U)

Decided on September 20, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

PRESENT:McCABE, P.J., COVELLO and TANENBAUM, JJ.
NO. 2003-1520 N C

OCEAN DIAGNOSTIC IMAGING, P.C. a/a/o DAVID BOYD and TRISHA S. HOUSEN, Appellant,
against
GEICO INSURANCE, Respondent.

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered on August 18, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff health care provider made out a prima facie showing of entitlement to recover no-fault benefits for services rendered to its assignors by submission of proof
that it had mailed the statutory claim forms, that defendant had received them, and that defendant did not pay or deny the claims within the 30-day statutory period (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Nyack Hosp. v State Farm Mut. Auto Ins. Co., 8 AD3d 250 [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]).

Despite its untimely denial of benefits, defendant is not precluded from asserting the [*2]defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). However, the affidavit of defendant’s attorney who had no personal knowledge of the facts, and who sets forth bare and conclusory allegations of fraud, constituted a submission in opposition to plaintiff’s motion which was insufficient to raise a triable issue of fact. Under these circumstances, the defendant’s submissions in opposition to plaintiff’s motion were insufficient to raise an issue of fact as to whether defendant’s denial of benefits was “premised on the fact or founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (id. at 199).

Accordingly, plaintiff’s motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: September 20, 2004