October 23, 2009

Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. (2009 NY Slip Op 52222(U))

https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-interboro-ins-co-2009-ny-slip-op52222u/

Court: Appellate Term, Second Department
Decided: October 23, 2009
Citation: 2009 NY Slip Op 52222(U) · 25 Misc 3d 134(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 8 later decisions (see Cited by)
Issues: Timeliness and preclusion Discovery and procedure

Cite as

Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134(A), 2009 NY Slip Op 52222(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer waived its late-claim defense by failing to advise the provider that reasonable justification could excuse late submission. The provider submitted its claim more than 45 days after rendering the services, and the insurer invoked the 45-day requirement in 11 NYCRR 65-1.1. Under 11 NYCRR 65-3.3 (e), however, the insurer had to communicate the availability of an excuse based on reasonable justification. The insurer also failed to show under CPLR 3212 (f) that outstanding discovery was needed to establish a triable issue. The Appellate Term, Second Department, affirmed the judgment awarding the provider summary judgment for assigned no-fault benefits.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. (2009 NY Slip Op 52222(U))

[*1]

Delta Diagnostic Radiology, P.C. v Interboro Ins. Co.

2009 NY Slip Op 52222(U) [25 Misc 3d 134(A)]

Decided on October 23, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 23, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2009-129 Q C.

Delta Diagnostic Radiology, P.C. as assignee of FRANK LOUIGARDE Respondent,
against
Interboro Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich J.), entered December 16, 2008, deemed from a judgment of the same court entered January 15, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 16, 2008 order which, inter alia, granted plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $878.67.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant argued, in opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment, that plaintiff’s claim was untimely because it was submitted more than 45 days after the services at issue were rendered, and that plaintiff’s motion was premature because plaintiff had failed to respond to defendant’s discovery demands. Defendant appeals from so much of the Civil Court’s order as granted plaintiff’s motion for summary judgment. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

Contrary to defendant’s contention, although plaintiff’s claim was submitted more than 45 days after the services at issue were rendered, defendant waived its reliance on the 45-day rule (Insurance Department Regulations [11 NYCRR] § 65-1.1) as a basis to deny the claim because defendant had failed to communicate to plaintiff, as required by the No-Fault Regulations, that late submission of the proof of claim will be excused where the applicant can provide a reasonable justification for the late submission (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]; SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]). Further, defendant failed to demonstrate that discovery was needed in [*2]order to show the existence of a triable issue of fact (see CPLR 3212 [f]).

As defendant’s papers failed to establish any other basis to deny plaintiff’s motion, the judgment in favor of plaintiff is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 23, 2009

Cited in this decision

A label shows how this decision treated the case it cites.

SZ Med. P.C. v Country-Wide Ins. Co. (2006 NY Slip Op 26194) FollowedAn insurer waives the 45-day submission defense by omitting notice that reasonable justification can excuse a late claim.

Cited by

A label shows how the later decision treated this one.

Gz Med. & Diagnostic, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50491(U)) FollowedThe provider failed to rebut the insurer's peer review report or show that discovery was needed to oppose partial summary judgment.
AAA Chiropractic, P.C. v MVAIC (2010 NY Slip Op 51896(U)) FollowedThe provider's late claims were dismissed because it showed no written justification, and its conclusory demand for discovery did not defeat judgment.
Bath Med. Supply, Inc. v Allstate Indem. Co. (2010 NY Slip Op 20059) FollowedThe insurer failed to justify discovery or preserve fraudulent-billing and EUO nonappearance defenses through proof of timely denials.
LDE Med. Servs., P.C. v Interboro Ins. Co. (2011 NY Slip Op 50946(U)) FollowedThe insurer failed to submit admissible proof of IME nonappearance with its cross motion, and proof first offered in reply was improper.
Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50997(U)) FollowedThe provider failed to rebut the insurer's medical necessity showing or demonstrate that discovery was needed to raise a triable issue.
Park v Zurich American Ins. Co. (2011 NY Slip Op 51836(U)) FollowedThe insurer failed to show that its late-claim denials advised the provider that reasonable justification could excuse late submission.
Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50149(U)) FollowedAn insurer need not attach the records reviewed by its peer reviewer to establish lack of medical necessity on summary judgment.
South Nassau Community Hosp. v Kemper Independence Ins. Co. (2013 NY Slip Op 51384(U)) FollowedThe insurer's affidavits established timely mailing of IME scheduling letters and the assignor's nonappearance for the scheduled IMEs. The scheduling entity's owner described standard mailing practices, and the examining chiropractor attested to nonappearance.

Similar decisions

Delta Diagnostic Radiology, P.C. v Mvaic (2013 NY Slip Op 51733(U))MVAIC established a timely denial based on the provider's failure to submit written proof of claim within 45 days of the services.
Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50293(U))The insurer failed to establish timely denials because it mailed them more than 30 days after receiving the claims without proving tolling.
Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2006 NY Slip Op 52034(U))The insurer failed to prove timely mailing of its denial and was precluded from asserting lack of medical necessity.
Delta Diagnostic Radiology, P.C. v GEICO Ins. Co. (2006 NY Slip Op 51557(U))The insurer's timely denials and reasoned peer reviews raised triable issues of medical necessity.
Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 52501(U))The insurer's follow-up verification requests mailed on the 30th calendar day after its initial requests were premature and ineffective.