Reported in New York Official Reports at Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51796(U))
| Acupuncture Now, P.C. v Global Liberty Ins. |
| 2019 NY Slip Op 51796(U) [65 Misc 3d 146(A)] |
| Decided on November 1, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-962 K C
against
Global Liberty Insurance, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 22, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.
The proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition.
In view of the foregoing, we reach no other issue.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 01, 2019
Reported in New York Official Reports at Easy Care Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51794(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Ameriprise Ins. Co., Respondent.
Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan M. Shapiro of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 2, 2017. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $2,079.15, $1,035.12, $980.12, $862.60, $542.56, and $255.04.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $2,079.15, $1,035.12, $980.12, $862.60, $542.56, and $255.04 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contentions on appeal, defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2011]) and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Plaintiff’s remaining contentions lack merit.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 01, 2019
Reported in New York Official Reports at Bronx Med. Diagnostic, P.C. v Hereford Ins. Co. (2019 NY Slip Op 51793(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Hereford Ins. Co., Respondent.
Zara Javakov, P.C. (Zara Javakov and Victoria Tarasova of counsel), for appellant. Goldberg Miller & Rubin (Melissa Brooks and Harlan Schreiber of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Andrew Borrok, J.), entered July 25, 2017. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). As limited by its brief, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s cross motion.
While plaintiff may have made a specific assertion, that defendant failed to establish that it had timely sought verification in the form of an EUO, for the first time on appeal, we, nonetheless, reach this issue as it is a question of law apparent on the face of the record, which could not have been avoided if raised at the proper juncture (see 41 Clinton Ave. Realty Corp. v [*2]Silver, 150 AD3d 1053, 1054 [2017]; Goldman & Assoc., LLP v Golden, 115 AD3d 911, 912 [2014]; Muniz v Mount Sinai Hosp. of Queens, 91 AD3d 612, 617-618 [2012]; Delta Diagnostic Radiology, P.C. v Citiwide Auto Leasing, 56 Misc 3d 132[A], 2017 NY Slip Op 50924[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
Plaintiff correctly argues that defendant’s cross-moving papers failed to establish, as a matter of law, that the first EUO scheduling letter defendant sent to plaintiff had been timely, as defendant’s affiant stated that the letter had been mailed more than 30 days after defendant had received the claims at issue (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In view of the foregoing, defendant failed to demonstrate its entitlement to summary judgment based upon plaintiff’s failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., and ALIOTTA, J., concur.
WESTON, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:
Plaintiff, for the first time on appeal, challenges defendant’s EUO scheduling letter as untimely. Since plaintiff never raised this issue in the Civil Court, the issue is not preserved for appellate review, and I see no reason to review it in the interest of justice. Accordingly, I vote to affirm the order, insofar as appealed from.
With regard to the EUO scheduling letters, plaintiff challenged the sufficiency of the affidavit to establish the protocol for mailing scheduling letters. Plaintiff’s contention in the Civil Court was that the dates were not legible on the mailing receipts for the first letter, that the second letter contained a typographical error, and that a signed return receipt was not attached to the papers. Although these were the only arguments advanced by plaintiff concerning the letters, plaintiff now, on appeal, has adopted a completely different strategy by asserting, for the first time, that the request to schedule an EUO was untimely, since the scheduling letter was mailed 39 days after receipt of the initial bill and 38 days after receipt of the third bill. Nothing in plaintiff’s submissions before the Civil Court makes any mention of the timeliness of the EUO letters. To the contrary, the focus of plaintiff’s arguments was the manner and mechanism of defendant’s mailing procedures. To consider plaintiff’s newly asserted argument on appeal not only ignores well-established rules of preservation, but undermines considerations of fundamental fairness.
It is a longstanding appellate practice principle that an issue raised for the first time on appeal will not be addressed (see Opalinski v City of New York, 110 AD3d 694, 696 [2013]; Libeson v Copy Realty Corp., 167 AD2d 376 [1990]; Block v Magee, 146 AD2d 730 [1989]). Where, as here, a party had the opportunity to raise an issue in the motion court, but failed to do so, the court should refrain from giving that party another opportunity to prevail on an issue by advancing a new legal theory (see generally Matter of Matarrese v New York City Health & Hosps. Corp., 247 AD2d 475 [1998]). Here, plaintiff has raised the timeliness of the EUO in its brief for the first time on appeal without stating any explanation for the failure to raise it in the Civil Court. By addressing an unpreserved issue, we are reversing a judge who never had an opportunity to rule on the issue, encouraging litigants to raise issues for the first time on appeal and exhausting the limited resources available in our appellate courts, given their overloaded case load. We should limit the scope of our review to address issues properly before us. For these reasons, I urge my colleagues to refrain from this practice, and I vote to affirm the order, insofar as appealed from.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 01, 2019
Reported in New York Official Reports at KJC Chiropractic, P.C. v Hartford Ins. Co. (2019 NY Slip Op 51792(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Hartford Insurance Company, Appellant.
Law Offices of Tobias & Kuhn (Michael V. Dimartini and Alina Worthalter-Green of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered June 7, 2017. The order, insofar as appealed from and as limited by the brief, implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of coverage, in that defendant had, prior to the accident at issue, cancelled the policy for nonpayment of the premium. Defendant appeals, as limited by the brief, from so much of an order of the Civil Court entered June 7, 2017 as implicitly denied defendant’s cross motion.
Upon a review of the record, we find that defendant sufficiently established that, in [*2]accordance with Vehicle and Traffic Law § 313 (1), defendant had mailed the policy cancellation letter to the insured, with a cancellation date that was effective prior to the accident, and that defendant had filed a copy of the notice of cancellation with the Department of Motor Vehicles (DMV) within 30 days of the effective date of the cancellation, pursuant to Vehicle and Traffic Law § 313 (2) (a) (see Bullock v Hanover Ins. Co., 144 AD2d 416, 417 [1988]; cf. Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]; Matter of Material Damage Adj. Corp. v King, 1 AD3d 439 [2003]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 54 Misc 3d 46 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant has demonstrated that the cancellation is effective with respect to plaintiff’s assignor, who was not the named insured or a member of the insured’s household (see Vehicle and Traffic Law § 313 [3]; Matter of Liberty Mut. Ins. Co. v Vidale, 207 AD2d 489 [1994] [in which the insurance policy was cancelled effective May 16, 1991, the accident occurred on June 1, 1991, and the insurer sent notice of the policy cancellation to the DMV on June 10, 1991, and the court held that the insurer had met its burden of proving that its policy was validly cancelled as to the third parties]). Consequently, defendant should have been awarded summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., WESTON and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 01, 2019
Reported in New York Official Reports at Chapa Prods. Corp. v MVAIC (2019 NY Slip Op 29341)
| Chapa Prods. Corp. v MVAIC |
| 2019 NY Slip Op 29341 [66 Misc 3d 16] |
| Accepted for Miscellaneous Reports Publication |
| Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, February 5, 2020 |
[*1]
| Chapa Products Corp., as Assignee of Emmanuel Vidal, Appellant, v MVAIC, Respondent. |
Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 1, 2019
The Rybak Firm, PLLC (Damin J. Toell of counsel) for appellant.
Marshall & Marshall, PLLC (Jeffrey Kadushin and Frank D’Esposito of counsel) for respondent.
Ordered that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint with prejudice is denied and, upon searching the record, the complaint is dismissed without prejudice; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that, pursuant to changes to the no-fault regulations applicable to services rendered after April 1, 2013, defendant had properly denied the claims at issue based upon plaintiff’s failure to provide requested verification within 120 days after the initial verification request (see 11 NYCRR 65-3.8 [b] [3]; 65-3.5 [o]) or, in the alternative, that it had properly denied the claims based upon plaintiff’s failure to appear for an examination under oath (EUO). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion on the [*2]first ground.
On appeal, plaintiff argues, among other things, that the defense that plaintiff failed to provide additional verification within 120 days is without merit because defendant did not demonstrate that it had denied the claims on that ground{**66 Misc 3d at 18} within 30 days after the expiration of the 120-day period, and that, in any event, plaintiff demonstrated that it had timely responded to the verification requests.
Plaintiff’s argument that defendant’s denials were untimely is raised for the first time on appeal. However, since this is a legal argument that appears on the face of the record and could not have been avoided had it been raised in the Civil Court, it may be considered by this court (see Navillus Tile, Inc. v George A. Fuller Co., Inc., 83 AD3d 919, 920 [2011]; Parry v Murphy, 79 AD3d 713, 715 [2010]; Olim Realty v Lanaj Home Furnishings, 65 AD3d 1318, 1320 [2009]; Chateau D’ If Corp. v City of New York, 219 AD2d 205, 209 [1996]). This issue in particular warrants appellate review because, to borrow principles applicable to the mootness doctrine, there is a likelihood of repetition, it has thus far evaded review, and it is a substantial no-fault issue (cf. Matter of Hearst Corp. v Clyne, 50 NY2d 707 [1980] [regarding exceptions to the mootness doctrine]).
The current version of the no-fault regulations provides that an insurer “may” issue a denial based upon an applicant’s failure to provide requested verification within 120 calendar days after the initial request (11 NYCRR 65-3.8 [b] [3]).[FN*] However, the regulations do not specify a time frame for issuing such a denial. As a general rule, “[n]o-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim” (11 NYCRR 65-3.8 [a] [1]). Defendant implicitly argues that, in the absence of a required time frame, an insurer should be allowed to issue such a denial at any time after the 120-day period has passed. We disagree.
The Appellate Division, Second Department, has applied the 30-day time period in which to pay or deny a claim in an analogous situation where there is no time frame specified in the no-fault regulations in which an insurer must pay or deny a claim—the defense that an applicant failed to appear for an EUO or an independent medical examination (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). In that case, the 30 days to pay or deny the claim begins to run on the date of the second failure to appear—the date that the insurer is permitted to conclude that there was a failure to comply with a condition precedent to coverage (see e.g. Veraso Med. Supply Corp. v 21st Century Ins. Co., 61 Misc 3d 146[A], {**66 Misc 3d at 19} 2018 NY Slip Op 51696[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). We apply a similar logic here, and hold that the deadline to issue a denial based upon the ground that an applicant failed to provide complete verification (see 11 NYCRR 65-3.5 [o]; 65-3.8 [b] [3]) is 150 days after the [*3]initial request for verification—or 30 days after the insurer is permitted to conclude that there was a failure to fully comply with a verification request, i.e., the date on which the 120-day period ends.
In this case, the record reflects that defendant mailed its denial of claim forms 208 days after the initial verification requests had been mailed out. Consequently, plaintiff correctly argues that defendant did not preserve the precludable, complete defense that plaintiff had not provided all of the requested verification within 120 days after the initial verification request (see 11 NYCRR 65-3.5 [o]; 65-3.8 [a] [1]; [b] [3]; see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]), and, thus, that the Civil Court should not have granted defendant’s cross motion for summary judgment dismissing the complaint with prejudice on that ground.
However, we agree with the Civil Court’s determination that the documentation plaintiff provided in response to defendant’s verification requests is “not in compliance with the request” (see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50925[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Historically, an insurer has not been required to pay or deny claims upon receipt of a “partial response” to a verification request (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2002] [“(a)n insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested”]; see also Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]; Compas Med., P.C. v Travelers Ins. Co., 53 Misc 3d 136[A], 2016 NY Slip Op 51441[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). The current version of 11 NYCRR 65-3.8 (b) (3) also does not obligate an insurer to pay or deny a claim prior to its receipt of all requested verification—it merely provides that an insurer “may” issue a denial. Previously, when a request for verification had not been fully complied with prior to the commencement of a no-fault action, the action was dismissed as premature (see Proscan Imaging, P.C. v Travelers Indem. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51176[U] [App Term, 2d{**66 Misc 3d at 20} Dept, 2d, 11th & 13th Jud Dists 2010]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), and we see no reason to deviate from that rule now.
In light of the foregoing, we hold that a denial of claim form issued following the expiration of the 150-day period after the issuance of the initial request for verification is a nullity with respect to that defense. Therefore, we find that the untimely denials issued in this case offer no basis to dismiss the complaint with prejudice. Rather, upon searching the record, we conclude that the action should be dismissed as premature, i.e., without prejudice, which is the same position the parties would have been in before 11 NYCRR 65-3.8 (b) (3) was amended to permit a denial on the ground that verification was not provided.
Finally, we note that, contrary to defendant’s argument, plaintiff’s failure to appear for EUOs does not provide an alternative basis for affirming the dismissal of the complaint with prejudice, as, based on the proof submitted, defendant’s EUO requests were nullities with respect [*4]to the claims at issue (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint with prejudice is denied and, upon searching the record, the complaint is dismissed without prejudice.
Weston, J. (concurring in part and dissenting in part and voting to affirm the Civil Court’s order in the following memorandum).
By imposing a 150-day time limit on when an insurer must deny a claim based upon a plaintiff’s failure to provide requested verification, the majority’s decision effectively recognizes a new rule where none exists, ignoring long-standing principles of statutory construction and jurisprudence. Among them is the principle—grounded in the doctrine of separation of powers—that a court’s role is to interpret statutes and regulations based on their plain meaning and to consider only the arguments and record before it (see Riley v County of Broome, 95 NY2d 455, 463 [2000]; Matter of Kevin M., 136 AD3d 826 [2016]). “ '[I]t is not for the courts to correct supposed errors, omissions or defects in legislation’ ” (Matter of {**66 Misc 3d at 21}Kevin M., 136 AD3d at 827, quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 73, Comment at 147-148 [1971 ed]; see Bright Homes v Wright, 8 NY2d 157 [1960]). Yet, today’s decision does precisely that—it imposes a time restriction that has no basis in either the no-fault regulations or the record. Accordingly, I am compelled to comment on the modification and what the true and practical effect of changing the order below from “with prejudice” to “without prejudice” means. While such a change may appear to be insignificant, its impact cannot be overlooked.
At the outset, it must be emphasized that this issue, raised for the first time on appeal, is not properly before this court. Although defendant’s denial clearly states that it is based, in part, on plaintiff’s failure to respond to its initial verification request, plaintiff failed to challenge the denial on this basis in the Civil Court. Instead, plaintiff chose to argue that the denial issued by defendant based upon plaintiff’s failure to appear at the examination under oath was untimely. Plaintiff had ample opportunity to object to defendant’s denial on the ground now asserted on appeal. Moreover, the argument raised here is not “ ’one which could not have been countered by the [defendant] had it been raised in the trial court’ ” (Smith v Smith, 116 AD2d 810, 812 [1986], quoting Sega v State of New York, 60 NY2d 183, 190 n 2 [1983]). Accordingly, plaintiff’s argument is not properly before this court and I would decline to review it in the interest of justice. Nevertheless, the majority chooses to review the issue and, in doing so, has effectively rewritten the no-fault regulations.
It is a fundamental principle of regulatory and statutory construction that where the [*5]wording of a statute or regulation is “clear and unambiguous, the court should construe the statute to give effect to the plain meaning of the words used” (Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340, 345 [1982]; see Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1 [2019]). “ ’Absent ambiguity the courts may not resort to rules of construction to [alter] the scope and application of a statute’ because no such rule ‘gives the court discretion to declare the intent of the law when the words are unequivocal’ ” (Kuzmich v 50 Murray St. Acquisition LLC, 34 NY3d 84, 91 [2019], quoting Bender v Jamaica Hosp., 40 NY2d 560, 562 [1976]).
Here, the wording of the relevant portion of section 65-3.8 (b) (3) of the no-fault regulations (11 NYCRR) could not be clearer:
“[A]n insurer shall not issue a denial of claim form{**66 Misc 3d at 22} . . . prior to its receipt of verification of all of the relevant information requested pursuant to sections 65-3.5 and 65-3.6 of this Subpart . . . . However, an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5 (o) of this Subpart.”
Contrary to the majority’s opinion, nothing in the regulation’s language requires an insurer to issue a denial within 30 days after the 120-day period following an initial request for verification has expired. To read such a requirement into the regulation is to disregard the plain terms of the regulation in favor of improper judicial legislation (see Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995] [“a court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact” (internal quotation marks omitted)]; Matter of City of New York, 275 App Div 948 [1949] [reading a time limitation into a statute where none exists is tantamount to improper judicial legislation], affd 300 NY 600 [1949]). The regulation unequivocally provides that an insurer “shall not” issue a denial before receipt of complete verification from the applicant. To temper this mandate, the regulation was revised in 2013 to allow an insurer to issue a denial, even if verification is not complete, as long as more than 120 days have elapsed since the initial request for verification. By providing that an insurer “may” issue a denial in these circumstances, the regulation clearly intends for the denial to be permissive, not mandatory.
Despite this permissive language, the majority has made it mandatory for a provider to deny a claim within 30 days after the 120-day period. Conspicuously absent from the regulatory language is any reference to a time frame as to when the denial has to be issued. In other parts of the amended regulations, time frames were included as part of the amendment. Had the Department of Financial Services intended to impose a 150-day time limit on when an insurer must deny a claim for failure to provide the requested verification, it would have included such language in the regulations (see Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205 [1976]).{**66 Misc 3d at 23} The fact that it did not is a clear indicator that the insurer’s obligations are [*6]consistent with what is written, and I decline to insert a directive requiring otherwise (see Matter of Chemical Specialties Mfrs. Assn., 85 NY2d at 394 [“a court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact” (internal quotation marks omitted)]).
It is not the judiciary’s role to amend regulations to achieve a particular result. The fact that an insurer is not obligated to issue a denial after the 120 days have passed should not be our focus. Our role is to apply statutes and regulations as written, and if a situation arises where clarification is required, courts have not been shy about recommending legislative/regulatory changes to those statutes and regulations (see e.g. Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]).
Accordingly, I would affirm the Civil Court’s order, which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint with prejudice.
Pesce, P.J., and Siegal, J., concur; Weston, J., concurs in part and dissents in part in a separate memorandum.
Footnote *:It is noted that an insurer may do so only if the verification request “so advised the applicant” (11 NYCRR 65-3.8 [b] [3]).Global Liberty Ins. Co. v Evans (2019 NY Slip Op 07716)
Reported in New York Official Reports at Global Liberty Ins. Co. v Evans (2019 NY Slip Op 07716)
| Global Liberty Ins. Co. v Evans |
| 2019 NY Slip Op 07716 [176 AD3d 599] |
| October 29, 2019 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Global Liberty Insurance Co., Appellant, v Akeem Evans et al., Defendants, and SML Acupuncture, P.C., Respondent. |
The Law Office of Jason Tenenbaum, P.C., Garden City (Talia Beard of counsel), for appellant.
Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for respondent.
Order, Supreme Court, Bronx County (Rubén Franco, J.), entered on or about April 9, 2019, which, as limited by the briefs, denied Global’s motion for summary judgment to declare it does not owe no fault coverage to health care provider defendant SML Acupuncture, P.C. (SML) because defendant-assignor Akeem Evans failed to attend two properly scheduled examinations under oath (EUOs), unanimously affirmed, without costs.
Based on the claims adjuster’s conflicting affidavits and an application for no-fault benefits that was dated September 15, 2015, and stamped as received by facsimile on October 11, 2011, Global failed to provide evidence sufficient to prove that the EUO letters were timely mailed (see Unitrin Advantage Ins. Co. v All of NY, Inc., 158 AD3d 449, 449 [1st Dept 2018]; National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]).
Summary judgment was also correctly denied because issues of facts arise as to why Evans, who appeared at the EUO with counsel, left after counsel abruptly announced that he would no longer represent claimant (see American States Ins. Co. v Huff, 119 AD3d 478, 478-479 [1st Dept 2014]).
SML’s contention that Global failed to provide notice as to the reasons why the claim was delayed “by identifying in writing the missing verification and the party from whom it was requested” (11 NYCRR 65-3.6 [b]) is unpreserved, and its argument that it should be awarded attorneys’ fees is unavailing, as this is an appeal from a declaratory action, not an arbitration (Insurance Law § 5106 [c]; 11 NYCRR 65-4.10 [j] [4]). Concur—Richter, J.P., Gische, Tom, Gesmer, Moulton, JJ.
Reported in New York Official Reports at ZZ Acupuncture, P.C. v American Ind. Ins. Co. (2019 NY Slip Op 51761(U))
| ZZ Acupuncture, P.C. v American Ind. Ins. Co. |
| 2019 NY Slip Op 51761(U) [65 Misc 3d 145(A)] |
| Decided on October 25, 2019 |
| 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 25, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1216 K C
against
American Independent Ins. Co., Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered April 26, 2018. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8).
For the reasons stated in Pierre J. Renelique, M.D., P.C., as Assignee of Vernizier, Jean Willy v American Ind. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-2405 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion to dismiss the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 25, 2019
Reported in New York Official Reports at SAS Med., P.C. v Travelers Ins. Co. (2019 NY Slip Op 51759(U))
| SAS Med., P.C. v Travelers Ins. Co. |
| 2019 NY Slip Op 51759(U) [65 Misc 3d 145(A)] |
| Decided on October 25, 2019 |
| 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 25, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1135 K C
against
Travelers Ins. Co., Appellant.
Law Offices of Aloy O. Ibuzor (Erika E.E. Treco of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered January 9, 2018. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered to assignors Paola Dossa and Omar Morrison.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered to assignors Paola Dossa and Omar Morrison are granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered to assignors Paola Dossa and Omar Morrison on the ground that the action was premature because plaintiff had failed to provide requested verification.
Defendant demonstrated that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received the requested verification. Thus, defendant demonstrated, prima facie, that the complaint insofar as it sought to recover for services rendered to Paola [*2]Dossa and Omar Morrison is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). As plaintiff failed to raise a triable issue of fact in opposition to the branches of defendant’s motion at issue, those branches of defendant’s motion should have been granted.
Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered to assignors Paola Dossa and Omar Morrison are granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 25, 2019
Reported in New York Official Reports at Active Care Med. Supply Corp. v American Ind. Ins. Co. (2019 NY Slip Op 51758(U))
| Active Care Med. Supply Corp. v American Ind. Ins. Co. |
| 2019 NY Slip Op 51758(U) [65 Misc 3d 145(A)] |
| Decided on October 25, 2019 |
| 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 25, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-739 K C
against
American Independent Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered January 5, 2018. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to dismiss the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8).
For the reasons stated in Pierre J. Renelique, M.D., P.C., as Assignee of Vernizier, Jean Willy v American Ind. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-2405 K C], decided herewith), the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 25, 2019
Reported in New York Official Reports at Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co. (2019 NY Slip Op 51756(U))
| Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co. |
| 2019 NY Slip Op 51756(U) [65 Misc 3d 144(A)] |
| Decided on October 25, 2019 |
| 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 25, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-456 K C
against
American Independent Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq. of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 16, 2017. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to dismiss the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8).
For the reasons stated in Pierre J. Renelique, M.D., P.C., as Assignee of Vernizier, Jean Willy v American Ind. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-2405 K C], decided herewith), the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 25, 2019