Alternative PLM Acupuncture, P.C v Nationwide Gen. Ins Co (2026 NY Slip Op 51325(U))

Reported in New York Official Reports at Alternative PLM Acupuncture, P.C v Nationwide Gen. Ins Co (2026 NY Slip Op 51325(U))

Civil Court of the City of New York, Kings County

Decided on May 5, 2026

Index No. CV-714666-21/KI

Chidi A. Eze, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause/Notice of Motion and Affidavits /Affirmations annexed 1

Answering Affidavits/Affirmations 2

Reply Affidavits/Affirmations Memoranda of Law 3

Upon the foregoing cited papers, the Decision/ Order on the Defendant’s motion for summary judgment is as follows:

In this action by plaintiff-provider to recover no-fault first-party benefits for treatment rendered to its assignor, Nicole Jones, for a motor vehicle accident that occurred April 2, 2020, defendant moves to dismiss the complaint as premature, stating that this is a worker’s compensation matter because plaintiff’s assignor was in the course of her employment when the accident occurred. Plaintiff argues that defendant waived its right to deny the claim for any reason whatsoever, since it did not do so within 30 days period, after receiving the bill, as prescribed by law.

NYS Insurance Law § 5106 states “[P]ayments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained.” The courts have interpreted this to also mean ‘any defense, other than lack of coverage and failure to comply with applicable fee schedule, is waived if not raised before the claim is overdue’. See Presbyterian Hosp. in the City of NY v. Maryland Cas. Co., 226 AD2d 613, 641 N.Y.S.2d 395 (2nd Dept 1996). Only a request for verification of claim tolls this 30-day period. See Id.

Here, the first issue to be determined by this court is whether or not defendant paid or [*2]denied plaintiff’s first bill (bill 1) within 30 days of receiving same or requested for verification within this timeframe.

There is no dispute that defendant received the first bill (bill 1) from plaintiff on or about June 9, 2020, and there is no dispute that defendant issued denial letter dated July 21, 2020, but received July 22, 2020. There is also no dispute that defendant issued what it called a ‘delay letter’ on June 22, 2020, which read:

We are currently investigating this matter to determine whether the alleged injuries arose out of the use and operation of our insured vehicle and whether the injured party is an eligible injured party entitled to No-Fault benefits under the above mentioned policy. As a result we have requested an EUO of the claimant and/or their assignee.^FN1

Defendant asserts that its delay letter, issued within 11 days of receiving plaintiff’s first bill has the effect of tolling this 30-day denial period. Defendant also argued that its Examination Under Oath scheduling letter, dated May 9, 2020, also has the effect of tolling this 30-day period.

The court notes that no bill was received by defendant on May 9, 2020, therefore that letter could not act as a verification request nor have a tolling effect, for the simple reason that you cannot request verification nor toll the paying of a bill without first receiving the bill.

This court and case law disagree with defendant’s position that its delay letter was sufficient to toll this 30-day period. The court reviewed the delay letter and found that nowhere in that letter did the word “verification’ appear. “It is well settled that an insurer’s delay letters, which request no verification, are insufficient to toll the 30-day statutory time period within which a claim must be paid or denied” Parsons Med. Supply, Inc. v. Progressive Ne. Ins. Co. 36 Misc 3d 148(A), 959 N.Y.S.2d 91 (App Term 2d, 11th and 13th Jud. Dists. 2012) (citing Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists.2010]).

Nor does defendant’s defense of assignor’s eligibility for Worker’s Compensation benefits qualify as ‘lack of coverage’ or ‘failure to comply with applicable fee’ denial.

Thus, defendant’s ‘delay letter’ of June 22, 2020, failed to establish that the 30-day period, within which to pay or deny a claim, was tolled. Consequently, the denial letter dated July 22, 2020, was untimely as it was issued more than 30 days from when defendant received plaintiff’s first bill.

With regards to bill 2, defendant denied same timely, on the ground that the assignor is eligible for worker’s compensation benefits, and this court cannot make the determination whether or not said assignor is so eligible.

In light of the above, this court need not reach defendant’s remaining contentions.

Accordingly, it is

ORDERED that defendant’s summary judgment motion is DENIED, as to Bill 1

ORDERED that summary judgment is granted to defendant, as to Bill 2

Date: May 5, 2026

Hon. Chidi A. Eze

Civil Court Judge (NYC)