June 3, 2005

Ocean Diagnostic Imaging P.C. v GMAC Ins. F/k/a Integon Ins. (2005 NYSlipOp 50865(U))

Headnote

The main issue in this case was whether the plaintiff, a health care provider, was entitled to summary judgment to recover first-party no-fault benefits for medical services rendered to its assignor. The court considered the fact that the plaintiff had submitted a claim for the medical services and that payment of the benefits was overdue. The defendant had timely denied the claim but had to submit proof in admissible form to rebut the plaintiff's prima facie showing. The court found that the defendant had raised a triable issue of fact as to whether it was provided with notice of the accident within 90 days as required by the insurance regulations. Therefore, the court affirmed the decision to deny the plaintiff's motion for summary judgment, as the defendant had sufficiently rebutted the plaintiff's showing.

Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v GMAC Ins. F/k/a Integon Ins. (2005 NYSlipOp 50865(U))

Ocean Diagnostic Imaging P.C. v GMAC Ins. F/k/a Integon Ins. (2005 NYSlipOp 50865(U)) [*1]

Ocean Diagnostic Imaging P.C. v GMAC Ins. F/k/a Integon Ins.

2005 NYSlipOp 50865(U)

Decided on June 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: June 3, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and BELEN, JJ.
2004-1269 K C

Ocean Diagnostic Imaging P.C. a/a/o WILMON JOSEPH, Appellant,
against
GMAC Insurance F/k/a Integon Insurance, Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (A. O’Shea, J.), entered July 7, 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 its 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 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]). While defendant timely denied the claim, it nevertheless had to submit proof in admissible form in opposition to the motion to rebut plaintiff’s prima facie showing (A.B. Med. Servs. PLLC, 4 Misc 3d at 86).
Upon a review of the record, we find that defendant sufficiently rebutted plaintiff’s prima facie showing by raising the preserved triable issue of fact as to whether it was provided with notice of the accident within 90 days as required by the insurance regulations. Accordingly, the court below properly denied plaintiff’s motion for summary judgment (see e.g. Hackensack Univ. Med. Ctr. v New York City Tr. Auth., 10 AD3d 675 [2004]). [*2]
Decision Date: June 03, 2005