July 10, 2008

Quality Health Prods., Inc. v Auto One Ins. Co. (2008 NY Slip Op 51530(U))

https://www.beynensonlaw.com/case-law/quality-health-prods-inc-v-auto-one-ins-co-2008-ny-slip-op-51530u/

Court
Appellate Term, Second Department
Decided
July 10, 2008
Citation
2008 NY Slip Op 51530(U) · 20 Misc 3d 136(A)
Posture
Summary judgment
Outcome
Provider prevailed
Issues
Verification requests Timeliness and preclusion
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Quality Health Prods., Inc. v Auto One Ins. Co., 20 Misc 3d 136(A), 2008 NY Slip Op 51530(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 failed to establish continued EUO tolling after receiving verification, rendering its denial untimely and precluding fraudulent billing. The provider established submission of its claim and overdue payment under Insurance Law § 5106 (a). The insurer received medical-necessity verification on November 23, but the record did not show an additional EUO request within 15 days as required by 11 NYCRR 65-3.5. Its denial was not mailed until January 4. Following Fair Price Med. Supply Corp. v Travelers Indem. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for statutory interest and attorney's fees; a separate concurrence agreed only in the result.

Reported in New York Official Reports at Quality Health Prods., Inc. v Auto One Ins. Co. (2008 NY Slip Op 51530(U))

[*1]
Quality Health Prods., Inc. v Auto One Ins. Co.
2008 NY Slip Op 51530(U) [20 Misc 3d 136(A)]
Decided on July 10, 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on July 10, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2007-304 Q C. NO. 2007-304 Q C
Quality Health Products, Inc. a/a/o LINDO LINCOLN, Appellant,

against

Auto One Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 24, 2007. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff established a prima facie entitlement to summary judgment by proof that it
submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Mani Med. P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]). The burden then shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Inasmuch as defendant timely sought verification with respect to the medical necessity of the supplies furnished by plaintiff to its assignor, upon receipt of such verification on November 23, 2005, defendant’s 30-day claim determination period began to run (Insurance Department [*2]Regulations [11 NYCRR] § 65-3.5). While defendant argues that its time to pay or deny plaintiff’s claim was further tolled because defendant requested that plaintiff’s assignor submit to an examination under oath (EUO), the record does not indicate that defendant made such a request for additional verification within 15 days of defendant’s receipt of the letter of medical necessity. As a result, defendant failed to show that its 30-day claim determination period was still tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.5). In view of the foregoing, defendant’s denial of claim form, which was not mailed until January 4, 2006, was untimely and defendant was precluded from raising fraudulent billing as a defense in this action (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Consequently, plaintiff’s motion for summary judgment should have been granted.

Accordingly, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 10, 2008

Similar decisions