March 29, 2013

Leica Supply, Inc. v GEICO Indem. Co. (2013 NY Slip Op 50478(U))

Headnote

After a nonjury trial the Civil Court dismissed a provider's action for assigned first-party no-fault benefits. The sole issue on appeal was whether the insurer's letters after receiving the claim forms were requests for verification that tolled its time to pay or deny. The Appellate Term found the letters merely said payment was being delayed and requested no specific verification, so they did not toll the time. The insurer was therefore precluded from raising its lack of medical necessity defense. The judgment was reversed and the matter remitted for judgment for the plaintiff of $2,748.64 plus interest and attorney's fees.

Reported in New York Official Reports at Leica Supply, Inc. v GEICO Indem. Co. (2013 NY Slip Op 50478(U))

[*1]
Leica Supply, Inc. v GEICO Indem. Co.
2013 NY Slip Op 50478(U) [39 Misc 3d 132(A)]
Decided on March 29, 2013
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 29, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : RIOS, J.P., WESTON and ALIOTTA, JJ
2011-2104 Q C.

Leica Supply, Inc. as Assignee of JASON STUART, Appellant, —

against

GEICO Indemnity Company, Respondent.


Appeal from a decision of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), dated October 15, 2010, deemed from a judgment of the same court entered February 16, 2011. 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 judgment in favor of plaintiff in the principal sum of $2,748.64, plus statutory interest and attorney’s fees following the calculation and assessment thereof.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue raised on appeal is whether defendant’s letters to plaintiff following defendant’s receipt of plaintiff’s claim forms constituted requests for verification so as to toll defendant’s time to pay or deny plaintiff’s claims. A review of defendant’s letters reveals that they merely notified plaintiff that defendant was delaying payment, but they did not request any specific verification. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny plaintiff’s claims (see 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 [*2]2010]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant is precluded from raising its proffered defense of lack of medical necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 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 $2,748.64, plus statutory interest and attorney’s fees following the calculation and assessment thereof pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rios, J.P., Weston and Aliotta, JJ., concur.
Decision Date: March 29, 2013