Opinion
No. 2011–1241 K C.
2013-05-14
URBAN RADIOLOGY, P.C. as Assignee of Stanislav ALTMAN, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Respondent.
Present: WESTON, J.P., PESCE and RIOS, JJ.
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. 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 N.Y.2d 304 [1984];Northrup v. Blue Cross & Blue Shield of Utica–Waterdown, 235 A.D.2d 1022 [1997];70 N.Y. Jur 2d, Insurance § 1493) and that such a defense is not precluded ( see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 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.