May 28, 2004

Ocean Diagnostic Imaging v Geico Ins. (2004 NY Slip Op 50511(U))

Headnote

The relevant facts considered by the court were that Ocean Diagnostic Imaging, a health service provider, sought assigned first-party no-fault benefits from Geico Insurance. The main issue decided was whether Ocean Diagnostic Imaging was entitled to summary judgment, and the court held that they were. The court found that Ocean Diagnostic Imaging had established a prima facie entitlement to summary judgment by submitting proper proof of the claim and the amount of the loss, and that Geico Insurance had failed to raise any triable issues of fact. The court also found that Geico Insurance did not respond to the claim within the required 30-day period and that their requests for examinations under oath did not toll the 30-day period, therefore Ocean Diagnostic Imaging's motion for summary judgment should have been granted. The matter was remanded for the calculation of statutory interest and an assessment of attorney's fees.

Reported in New York Official Reports at Ocean Diagnostic Imaging v Geico Ins. (2004 NY Slip Op 50511(U))

Ocean Diagnostic Imaging v Geico Ins. (2004 NY Slip Op 50511(U)) [*1]

Ocean Diagnostic Imaging v Geico Ins.

2004 NY Slip Op 50511(U)

Decided on May 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 28, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

PRESENT:McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2003-1076 N C

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o HIRAM IRIZARRY, Appellant,
against
GEICO INSURANCE, Respondent.

Appeal by plaintiff from so much of an order of District Court, Nassau County (H. Miller, J.), dated May 9, 2003, as denied its motion for summary judgment.

Order, insofar as appealed from, unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded for the calculation of statutory interest and an assessment of attorney’s fees.

In this action seeking assigned first-party no-fault benefits, plaintiff health service provider established a prima facie entitlement to summary judgment by the submission of proper proof of the claim and the amount of the loss (see Insurance Law § 5106 [a]; Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]). Defendant has failed to raise any triable
issues of fact. Defendant acknowledges receiving plaintiff’s proof of claim on August 15, 2001, and did not send its denial of the claim until November 17, 2001, well beyond the 30-day period within which it was required to pay or deny the claim (11 NYCRR 65.15 [g] [3]). Defendant’s requests for examinations under oath did not serve to toll the 30-day period, since the applicable insurance regulation did not contain provisions requiring a claimant to submit to examinations under oath (see A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Bronx Med. Servs. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]). Accordingly, plaintiff’s motion for summary judgment should have been granted (see King’s Med. Supply, Inc. v Progressive Ins., Co., 2004 NY Slip 50311 [U] [App [*2]Term, 2nd & 11th Jud Dists]), and the matter is remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: May 28, 2004