May 19, 2005

Gpm Chiropractic, P.C. v State Farm Mut. Ins. Co. (2005 NYSlipOp 50744(U))

Headnote

The main facts considered by the court were that the plaintiff, GPM Chiropractic, P.C., was seeking to recover $1,301.26 in first-party no-fault benefits for medical services rendered to its assignor, Rafael Rodrigues, following a motor vehicle accident. The court found that the plaintiff had established a prima facie entitlement to summary judgment by proving that it submitted a claim and that payment of no-fault benefits was overdue, precluding the defendant from raising most defenses. However, the defendant was not precluded from asserting the defense that the alleged injuries did not arise out of a covered accident. The court ultimately held that the defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage and that the plaintiff's motion for summary judgment should have been denied. The main issues decided were whether the plaintiff was entitled to summary judgment for first-party no-fault benefits, and whether the defendant was entitled to summary judgment based on the plaintiff's assignor's nonattendance at scheduled examinations under oath. The court's holding was that the plaintiff's motion for summary judgment should be denied, as defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage. The court also held that the defendant was not entitled to summary judgment based on the plaintiff's assignor's nonattendance at scheduled examinations under oath.

Reported in New York Official Reports at Gpm Chiropractic, P.C. v State Farm Mut. Ins. Co. (2005 NYSlipOp 50744(U))

Gpm Chiropractic, P.C. v State Farm Mut. Ins. Co. (2005 NYSlipOp 50744(U)) [*1]

Gpm Chiropractic, P.C. v State Farm Mut. Ins. Co.

2005 NYSlipOp 50744(U)

Decided on May 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PATTERSON, J.P., GOLIA and RIOS, JJ.
2004-709 Q C NO. 2004-709 Q C

GPM CHIROPRACTIC, P.C. as Assignee of RAFAEL RODRIGUES, Respondent,
against
STATE FARM MUTUAL INSURANCE COMPANY, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (D. Pineda-Kirwan, J.), entered December 16, 2003, denying its cross motion for summary judgment and granting plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.

Plaintiff health care provider commenced this action to recover $1,301.26 in first-party no-fault benefits for medical services rendered to its assignor, Rafael Rodrigues, for injuries he allegedly sustained in a motor vehicle accident on December 3, 2000. Upon a review of the record, we find that plaintiff established 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]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [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]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). It was not, however, precluded from asserting the defense that the alleged injuries did not arise out of a covered accident ([*2]see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). The affidavit submitted by defendant’s investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment should have been denied.

Contrary to defendant’s contention, defendant was not entitled to summary judgment based upon plaintiff’s assignor’s nonattendance at scheduled examinations [*3]
under oath (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56, 2004 NY Slip Op 24482 [App Term, 2d & 11th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: May 19, 2005