May 14, 2013

Urban Radiology, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50850(U))

Headnote

The court considered the fact that after the plaintiff presented its case in a trial to recover first-party no-fault benefits, the defendant offered no defense but relied on the record. Despite the claim forms not containing language about an assignment of benefits, the defendant did not object to the completeness of the forms or seek verification of the existence of a valid assignment. The main issue decided was whether the plaintiff had established a prima facie case and whether the defendant waived any defense based on the absence of an assignment of benefits. The court held that the defendant waived any defense based on the absence of an assignment of benefits and that it was the defendant's burden to show a meritorious defense, therefore it reversed the previous judgment and remitted the matter to the Civil Court for the entry of a judgment in favor of the plaintiff in the principal sum of $2,063.10, plus statutory interest and attorney's fees.

Reported in New York Official Reports at Urban Radiology, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50850(U))

Urban Radiology, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50850(U)) [*1]

Urban Radiology, P.C. v GEICO Gen. Ins. Co.

2013 NY Slip Op 50850(U) [39 Misc 3d 146(A)]

Decided on May 14, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2011-1241 K C.

Urban Radiology, P.C. as Assignee of STANISLAV ALTMAN, Appellant, —
against
GEICO General Insurance Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered May 10, 2010. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $2,063.10, plus statutory interest and attorney’s fees.

After plaintiff presented its prima facie case at the trial of this action by a provider to recover assigned first-party no-fault benefits, defendant offered no defense, but relied upon the record. The Civil Court dismissed the complaint, finding that plaintiff had not established a prima facie case because it had not offered into evidence an assignment of benefits.

While the claim forms at issue did not contain any language regarding an assignment of benefits, there is nothing in the record to indicate that defendant timely objected to the completeness of the forms or sought verification of the existence of a valid assignment. Accordingly, defendant waived any defense based thereon (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. [*2]Co., 21 AD3d 348 [2005]).

Contrary to defendant’s contention, at a trial, unlike upon a provider’s motion for summary judgment, a provider is not required to “show that there is no defense to the cause of action or that the cause of action or defense has no merit” (CPLR 3212 [b]). Rather, it is defendant’s burden to show that it has a meritorious defense (see generally Seaboard Sur. Co. v Gillette Co., 64 NY2d 304 [1984]; Northrup v Blue Cross & Blue Shield of Utica-Waterdown, 235 AD2d 1022 [1997]; 70 NY Jur 2d, Insurance § 1493) and that such a defense is not precluded (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $2,063.10, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013