November 5, 2008
Alur Med. Supply, Inc. v Progressive Ins. Co. (2008 NY Slip Op 52191(U))
https://www.beynensonlaw.com/case-law/alur-med-supply-inc-v-progressive-ins-co-2008-ny-slip-op-52191u/
- Decided
- November 5, 2008
- Citation
- 2008 NY Slip Op 52191(U) · 21 Misc 3d 134(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Distinguished in 1 and followed in 2 later decisions (see Cited by)
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.
Reported in New York Official Reports at Alur Med. Supply, Inc. v Progressive Ins. Co. (2008 NY Slip Op 52191(U))
| Alur Med. Supply, Inc. v Progressive Ins. Co. |
| 2008 NY Slip Op 52191(U) [21 Misc 3d 134(A)] |
| Decided on November 5, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-1609 Q C.
against
Progressive Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 28, 2007, deemed from a judgment of said court entered September 26, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the August 28, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $740.25.
Judgment affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, asserting, among other things, that defendant had failed to timely deny the claim. The court granted plaintiff’s motion, holding that the statutory time period in which defendant had to pay or deny the claim was not tolled because defendant’s follow-up verification request letter was premature. The instant appeal by defendant ensued.
Since defendant raises no issue on appeal with respect to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass on the propriety of the determination of the court below with respect thereto.
In opposition to plaintiff’s motion, defendant argued that the statutory time period in which it had to pay or deny the claim was tolled due to the assignor’s delay in appearing for an examination under oath (EUO). However, contrary to defendant’s contention, the September 19, 2006 letter did not constitute a proper request for verification since it neither demanded nor required a response (see New York & Presbyt. Hosp. v Eagle Ins. Co., 17 AD3d 646 [2005]; Englinton Med. P.C. v MVAIC, 14 Misc 3d 135[A], 2007 NY Slip Op 50164[U] [App Term, 2d [*2]& 11th Jud Dists 2007]). Consequently, the 30-day claim determination period (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]) was not tolled, and defendant’s denial of claim form was untimely. As a result, defendant was precluded from raising most defenses, including its proffered defense of lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, the judgment is affirmed.
In view of the foregoing, we pass on no other issue.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: November 05, 2008
Cited in this decision
- New York & Presbyt. Hosp. v Eagle Ins. Co. (2005 NY Slip Op 03210)An insurer was precluded from asserting delayed verification as a defense after failing to pay or deny upon receiving the requested material.
- Englinton Med., P.C. v MVAIC (2007 NY Slip Op 50164(U))MVAIC's 30-day period to pay or deny begins upon receipt of claim forms, without awaiting a qualified-person determination.
Cited by
A label shows how the later decision treated this one.
- New York Core Chiropractic, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50599(U)) DistinguishedAn EUO request sent after 15 business days but within 30 calendar days tolls the time to pay or deny, with a reduction for lateness.
- Sayyed DC, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50311(U)) FollowedThe insurer established its EUO nonappearance defense to six bills, but untimely denials barred that defense to two others.
- NY Wellness Med. P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50382(U)) FollowedThe insurer's delay notices referring only to the assignor's EUO failed to toll the payment period for three provider bills.
- Sloan v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50997(U))The insurer's EUO defense failed because its initial request and its denial following the second nonappearance were untimely.
Similar decisions
- Alur Med. Supply, Inc. v Eveready Ins. Co. (2009 NY Slip Op 51492(U))The provider's action was premature because it began before responses to timely verification requests were served.
- Alur Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51053(U))The provider failed to prove submission of its claim because its mailing certificate identified a different insurer.
- Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50700(U))The insurer's unrebutted affirmed peer review report established lack of medical necessity and warranted summary judgment.
- Alfa Med. Supplies v Utica Mut. Ins. Co. (2012 NY Slip Op 51890(U))The insurer raised a medical-necessity issue on one claim but failed to establish timely denial of the other assignor's claim.
- Alur Med. Supply, Inc. v Country-Wide Ins. Co. (2008 NY Slip Op 51234(U))The provider failed to establish a business-records foundation, and the insurer's IME report did not address the necessity of the supplies.