Bronx Expert Radiology, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51992(U))

District Court of Nassau County, Third District

3901/04

Bonnie P. Chaikin, J.

In this action for recovery of assigned first party no-fault benefits, plaintiff moves for an order pursuant to CPLR §3212, granting summary judgment in its favor against the defendant. For the reasons set forth below, the motion is granted.

In this type of action, plaintiff establishes 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]; 11 NYCRR 65.15 [g][3]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [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]; A. B. Medical Services, PLLC v. Lumbermens Casualty Co., 4 Misc 3d 86, 781 NYS2d 818 [S Ct NY App Term 2004]).

In this case, it is undisputed that the bill for an MRI in the sum of $879.73 was received by the defendant on May 24, 2004, and that the denial was dated November 1, 2004. (See NF-10 annexed to the moving papers.) Thus, plaintiff has established its prima facie entitlement to summary judgement in its favor.

Once the movant demonstrates a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form

sufficient to establish the existence of material issues of fact that would require a plenary trial of

the action (see, Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]).

In opposition to this motion, defendant alleges that the claim was denied because it arose from a staged event. It supports this allegation with an attorney’s affirmation, an affidavit by Allstate special investigator Susan Denicola, as well as copies of the EUO transcripts of the assignor and her passenger in the vehicle at the time of the accident.

It is now well established that an untimely denial of claim will not preclude a lack of [*2]coverage defense premised on the fact or founded belief that the alleged injury did not arise out of an insured incident (Central General Hosp. v. Chubb Group of Ins. Companies, 90 NY2d 195, 659 NYS2d 246 [1997]). However, the insurer must do more than simply allege that it has a well founded belief. As the Court explained in Mount Sinai v Triboro Coach Inc., 263 AD2d 11, 699 NYS2d 77 (2d Dept 1999), the burden is on the insurer “to come forward with proof in admissible form to establish the fact’ or the evidentiary found[ation for its] belief. Applying these principles to the case at bar, it is clear that the burden is on Allstate to come forward with proof in admissible form to establish the fact or the evidentiary foundation for its belief that the instant claim arose from a staged incident rather than a covered accident. Based upon the documents submitted, defendant fails in this regard.

The sworn statement of special investigator Denicola alludes to “information … acquired

that indicates the possibility that the accident was intentionally caused to defraud insurance companies, in general, and Allstate, in particular”, but Investigator Denicola fails to reveals such information.She relies wholly upon the EUOs annexed to the opposition papers, pointing to their inconsistencies and alleged deficiencies.

The court has read both EUOs and is not persuaded that they support a finding that the accident at issue was a staged incident.

Accordingly, the court finds that defendant has failed to come forward with proof in admissible form to show either a staged event or raise a material issue of fact that would necessitate a denial of this motion. There being no triable issues of fact regarding the defendant’s failure to pay or properly deny plaintiff’s claim within thirty days of receipt of said claim, summary judgment is granted in favor of the plaintiff.

The plaintiff is awarded the sum of $879.73, together with interest at the statutory rate of 2% per month from June 24, 2004, plus attorneys fees equal to 20% thereof, not to exceed $850.00. [Insurance Law §5106(a); 11 NYCRR §65-3.9 (a) and ] and 11 NYCRR §65-4.6(e)].

The foregoing constitutes the Decision and Order of this Court.

So Ordered:

____________________________

District Court Judge

Dated:October 13, 2006

cc:Israel, Israel & Purdy, LLP

Stern & Montana, LLP