CV-020834-13

Russell Friedman & Associates, LLP, Attorneys for Plaintiff, 3000 Marcus Avenue, Suite 2E1, Lake Success, New York 11042-1005, 516-355-9694;

Abrams, Cohen & Associates, Attorneys for Defendant, 5 Hanover Square, Suite 1601, New York, New York 10004, 646-449-7490.

This is a case of first impression. Should this court follow the holding of the Second Department that claimants are excused from filing claims for no-fault benefits when an insurance company disclaims coverage for no-fault benefits based upon a medical review? In the alternative, should this court follow the opinion of the Office of the General Counsel of the State of New York Insurance Department, which came after the holding of the Second Department, [*2]that claimants submitting for no-fault benefits must timely submit claims in order to be eligible for the payments of benefits even after receiving a denial of all future benefits by the insurance carrier?

Motion by State Farm

Defendant State Farm moves for summary judgment on the grounds that since plaintiff Greater Forest Hills did not submit proof of claim for $3,576.83 pursuant to NYCRR 65-1.1, plaintiff cannot recover for physical therapy rendered to its assignor Jacinto Sanchez.

Facts

Plaintiff seeks to recover the sum of $3,576.83 for physical therapy rendered to its assignor Jacinto Sanchez for the period of August 1, 2011 through February 1, 2012. Mr. Sanchez allegedly sustained personal injuries in an automobile accident on November 22, 2010. Plaintiff claims that it properly billed defendant for said service.

Defendant submits the affidavit of Carol Anne Slack, dated March 6, 2014, who is presently a claim representative and has been employed by defendant for over 21 years. Ms. Slack states that defendant never received the bill for $3,576.83 for services rendered August 1, 2011 through February 1, 2012.

Plaintiff submits no proof that it ever sent the bill to State Farm.

Defendant issued the Denial of Claim form dated June 9, 2011, which denied all New York No-Fault benefits effective June 10, 2011, because:

In accordance with the independent medical examination performed by Jacquelin Emmanuel MD on 5/23/11, the injured party is no longer in need of additional Orthopedic treatment; in addition, the cervical and lumbar injuries are resolved and the right shoulder impingement injuries are unrelated to the accident. Therefore, all New York No-Fault benefits pertaining to treatment to the above injuries are denied effective 6/10/11. A copy of this examination is enclosed for your review and a copy of the report is being sent to each party that is carbon copied on the NF10.

Decision

Defendant contends that since plaintiff never submitted the necessary claim form for the services rendered pursuant to NYCRR 65-1.1, plaintiff is barred from pursuing this action.

Plaintiff contends that once defendant repudiated any further responsibility to pay no-fault claims, plaintiff was no longer obligated to submit proof of claim forms to the defendant. Plaintiff cites Matter of State Farm Ins. Co. v. Domotor, 266 AD2d 219, 697 NYS2d 348 (2nd [*3]Dept 1999) to support its position. In Matter of State Farm Ins. Co. v. Domotor, State Farm terminated all further no-fault benefits after its medical experts determined that treatment was no longer necessary. The Second Department held that an insurance carrier can no longer insist that no-fault claims for services rendered be timely submitted once its disclaimed coverage:

An insured’s failure to provide timely written proof of loss is generally an absolute defense to an action to recover on the policy (see, Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 NY2d 201). However, this absolute defense may be waived (see, Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., supra; Treptow v. Exchange Mut. Ins. Co., 106 AD2d 767). An insurance carrier may not insist upon adherence to the terms of its policy after it has repudiated liability on the claim by sending a letter disclaiming coverage (see, Rajchandra Corp. v. Title Guar. Co., 163 AD2d 765, 769) for “[o]nce an insurer repudiates liability . . . the [in]sured is excused from any of its obligations under the policy” (Ocean-Clear, Inc. v. Continental Cas. Co., 94 AD2d 717, 718).

Matter of State Farm v. Domotor, supra, was recently cited with approval by the court in State Farm Mut. Auto. Ins. Co. v. Urban, 78 AD3d 1064, 912 NYS2d 586 (2nd Dept 2010).

In NY Medical Health, P.C. v. New York City Transit Authority, 24 Misc 3d 1219(A), 897 NYS2d 671, 2009 WL 2058664 (NY City Civ Ct, 2009) the Court followed the rationale of Matter of State Farm v. Domotor, supra, to a situation involving the New York City Transit Authority (self-insurer) which denied liability for no-fault benefits. The Transit Authority denied liability because the accident was caused by the injured party driving a bike into a disabled bus that was standing still, i.e.; in other words, the accident did not arise out of the use or operation of the Transit Authority motor vehicle. The Court upheld the arbitration award to the plaintiff because plaintiff no longer had a duty to submit timely claims to defendant once defendant denied coverage and all liability for no-fault benefits.

Defendant cites the opinion dated September 2, 2004, from the Office of the General Counsel of the State of New York Insurance Department. The opinion disagrees with the holding of Matter of State Farm v. Domotor, supra. The opinion states that the plaintiff must timely submit claims for no-fault benefits even when the insurance carrier has denied all future benefits based upon a medical exam. The opinion states:

Question Presented

After a No-Fault insurer has denied all future benefits for continued treatment by a health provider of an eligible injured person based upon the negative findings of an insurer’s medical examination of that person, must the insurer continue to issue denials for claims for continued treatment which are submitted subsequent to the issuance of the denial for all future benefits?

Conclusion

Yes. Pursuant to Section 5106(a) of the Insurance Law and Sections 65-3.8(a)(1) and 65-3.8(c) of Department No-Fault Regulation 68, whenever a No-Fault provider submits a claim for reimbursement to an insurer, the insurer must pay or deny the claim within 30 calendar days after receipt of proof of claim. There is no provision in either the No-Fault statue or regulation which relieves an insurer of the obligation to pay or issue a denial on all claims for benefits submitted. Neither does the statute or regulation relieve an applicant for benefits of their responsibility to submit claims in order to be eligible for the payment of benefits, even after receiving a denial of all future benefits.

Defendant urges this court to follow the said opinion from the State Insurance Department because the Court of Appeals generally gives deference to the opinions of the State Insurance Department; see paragraph 8 of the defendant’s reply affirmation, dated October 9, 2014, which states:

The Court of Appeals has generally given deference to the opinions of the regulatory agencies. See State Farm Mutual Automobile Insurance Co. v. Robert Mallela, 4 NY3d 313 (2005) (giving deference to the Insurance Department which had recently promulgated revised No-Fault regulations); New York State Assn. of Life Underwriters, 83 NY2d 353 (1994); Gaines v. New York State Division of Housing and Community Renewal, 90 NY2d 545 (1997); Rodriguez v. Perales, 86 NY2d 361 (1995); Elcor Health Services v. Novello, 100 NY2d 273 (2003); Morris v. County Bd. of Assessors, 35 NY2d 624 (1974). This has been true of the Insurance Department specifically. See John Paterno, Inv. v. Curiale, 88 NY2d 328 (1996). Such interpretations are generally accorded great weight by the Courts. See Udall v. Tallman, 380 U.S. 1 (1965); Lyng v. Secretary of Agriculture, 476 U.S. 926 (1976); Immigration and Naturalization Service v. Stanisic, 395 U.S. 62 (1969); State Farm Mutual Automobile Ins. Co v. Levin, 263 AD2d 233 (3rd Dept. 2000), appeal denied, 95 NY2d 754; Allstate Ins. Co. v. Libow, 106 AD2d 110 (2nd Dept., 1984).

Although this court is somewhat sympathetic to the position of defendant presented herein, this court is constrained to follow the Second Department that plaintiffs are not obligated to timely submit claims for no-fault benefits once an insurance carrier denies coverage.

Conclusion

This court urges defendant to appeal this decision to have the Second Department review this matter in light of the position of the State Insurance Department.

Thus, the motion for summary judgment is denied. Plaintiff can proceed to press its no-fault claim for services rendered even though it did not timely submit the necessary claim form because this requirement became unnecessary when defendant denied all further coverage for no-[*4]fault benefits based upon the independent medical examination of Dr. Jacquelin Emmanuel.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:November 10, 2014

Decided on November 3, 2014

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Ann E. O’Shea, J.), dated October 17, 2011, as granted plaintiffs’ cross motion for summary judgment on the complaint.

Per Curiam.

Order (Ann E. O’Shea, J.), dated October 17, 2011, affirmed, with $10 costs.

Plaintiffs-providers established prima facie their entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by defendant-insurer and that payment of the no-fault benefits was overdue (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8 [a][1]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313 [2008]).

In opposition, defendant failed to raise a triable issue. Although defendant showed that it timely denied the claim on the ground of medical necessity, it failed to submit the IME report upon which its denial was based or any other evidentiary proof to support its defense of medical necessity (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]; Mollins v Allstate Ins. Co., 20 Misc 3d 141[A], 2008 NY Slip Op 51616[U][App Term, 1st Dept 2008]; cf. NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190 [2011]). In the absence of “evidentiary facts” showing that a “bona fide” issue exists (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1979]) as to the medical necessity of the services here at issue, plaintiff’s cross motion for summary judgment was properly granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on October 29, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 30, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint on the ground that the out-of-state affidavit of defendant’s claims analyst submitted in support of the motion was not accompanied by a certificate of conformity. While plaintiff timely objected to the form of defendant’s affidavit, in that it did not comply with the requirements of CPLR 2309 (c), the absence of a certificate of conformity is not a fatal defect (see Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Bey v Neuman, 100 AD3d 581 [2012]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), as the defect may be corrected nunc pro tunc or disregarded pursuant to CPLR 2001 (see Midfirst Bank v Agho, __ AD3d __, 2014 NY Slip Op 05778 [2d Dept 2014]).

Nevertheless, we find that the affidavit of defendant’s claims analyst was not in proper admissible form for a different reason, to wit, that the notary public never stated therein that the claims analyst had personally appeared before her and was personally known to her or had satisfactorily established her identity (see Galetta v Galetta, 21 NY3d 186 [2013]; see also Fryer v Rockefeller, 63 NY 268 [1875]; Gross v Rowley, 147 App Div 529 [1911]; cf. Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). As we do not consider the factual assertions contained in that document, we find no basis to disturb the Civil Court’s denial of defendant’s motion.

Accordingly, the order is affirmed.

Weston, J.P., Solomon and Elliot, JJ., concur.

Decided on October 22, 2014

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered February 27, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d’Auguste, J.), entered February 27, 2013, reversed, with $10 costs, motion denied, and complaint reinstated.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal since defendant “failed to . . . establish that the denial of claim form was in fact mailed to the plaintiff” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564-565 [2005]; see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011]). The affidavit submitted by the defendant insurer to establish proof of mailing – identifying the affiant as a “mailroom representative” of a nonparty to this action, State-Wide Insurance Company (“State-Wide”) – neither stated that the affiant actually mailed the claim denial to plaintiff nor, so far as appears, described defendant’s mailing office practice and procedures (see New York and Presbyterian Hospital v Allstate Ins. Co., 29 AD3d 547 [2006]), as opposed to those generally followed by State-Wide. Conspicuously absent from defendant’s moving submission was any allegation or showing that a jural relationship existed between defendant and State-Wide. Given these shortcomings in defendant’s proof, we have no occasion to consider whether defendant’s purported mailing of the claim denial to the individual treating acupuncturist rather than the employing professional corporation was proper (see 11 NYCRR 65-3.8[c])

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on October 22, 2014

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered September 17, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. d’Auguste, J.), entered September 17, 2013, modified by reinstating plaintiff’s claim for first-party no-fault benefits in the sum of $1,259.53; as modified, order affirmed, without costs.

The affidavits and other documentary evidence submitted by defendant established prima facie that defendant timely denied that portion of plaintiff’s first-party no-fault claim seeking payment of $1,182.53 – stemming from acupuncture services rendered by plaintiff during the period October 1, 2009 through October 21, 2009 – on the ground that the fees plaintiff charged exceeded the amount permitted by the applicable workers’ compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture v Geico Ge. Ins. Co., 16 Misc 3d 23 [2007]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial form issued in connection with this claim or the calculation of the fee. Accordingly, defendant’s motion, insofar as it sought to dismiss the $1,182.53 claim – representing the difference between the amount charged for the services rendered and payment made to plaintiff pursuant to the fee schedule – was properly granted.

However, defendant failed to establish its entitlement to summary dismissal of plaintiff’s remaining claim of $1,259.53, since its motion papers below failed to address the validity of this claim.

We note, in passing, that while plaintiff’s complaint and defendant’s moving papers below did not make clear that two distinct no-fault claims are involved in this litigation, both the record as a whole and the parties’ appellate briefs plainly establish that point.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City, N.Y., for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 29, 2014, as denied, as premature, its cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

On September 25, 2012, the plaintiff’s assignor, Chun Chen, was allegedly involved in an accident that occurred while he was a passenger in an automobile. More than three months later, on January 15, 2013, Chen was admitted to a facility operated by Mount Sinai Hospital (hereinafter the hospital), where he allegedly remained until the next day. On January 31, 2013, Hospital Receivables Systems, Inc. (hereinafter Hospital Receivables), on behalf of the hospital, sent the prescribed “no-fault NF-5 form” request for payment to the defendant Auto One Insurance Company (hereinafter Auto One) with respect to medical treatment which Chen had received at the hospital. Auto One received this form by February 4, 2013.

On February 14, 2013, Auto One sent the hospital a request for additional verification seeking, inter alia, “colored photos of surgery, [c]ervical spine MRI films for 11/15/12 and 12/13/12, [and] [c]omplete prior medical records from Dr. Leonid Reyfman for prior injury in 2011 to include any surgery records and prior MRI films.” Auto One also allegedly sent copies of this request for verification to Chen himself.

In a letter dated March 6, 2013, a representative of Hospital Receivables advised Auto One that “the hospital is not in possession of prior medical records from Dr. Leonid Reyfman including any surgery records and prior MRI Films”; that the hospital was not “in possession of any color photos of the surgery”; and that the hospital “was not authorized to release the actual cervical spine films that are in their [sic] possession.” This letter also indicated that the complete medical records maintained by the hospital referable to its treatment of Chen had been mailed to Auto One on March 5, 2013. Thereafter, Auto One sent a second request for verification dated March 19, 2013. In response thereto, Hospital Receivables, in effect, stated that it had already complied with the verification request.

[*2] In April 2013, the hospital, as assignee of Chen, commenced this action seeking payment of no-fault benefits. As relevant to this appeal, the Supreme Court denied Auto One’s cross motion for summary judgment dismissing the complaint, which was premised on the theory that the existence of outstanding requests for verification rendered the action premature. Auto One appeals.

When a health care provider, as assignee of a no-fault claimant, fails to respond to a verification request, including any follow-up request, “ ’the 30-day period in which to pay or deny the claim does not begin to run, and any claim for payment by the hospital is premature’ ” (Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007], quoting New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]). Here, Auto One failed to demonstrate its prima facie entitlement to judgment as a matter of law, since the record reveals that the hospital replied to the verification request with respect to those records in the hospital’s possession that it alleged it was authorized to release. In addition, there remain triable issues of fact regarding the “propriety” of some of Auto One’s requests for verification, including whether the items requested existed or were in the possession of the hospital or Chen (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]; cf. Westchester Med. Ctr. v Progressive Cas. Ins. Co., 43 AD3d 1039, 1040 [2007]). Thus, the Supreme Court properly denied, as premature, Auto One’s cross motion for summary judgment dismissing the complaint.

Given the existence of the triable issues of fact outlined above, there is no merit to the hospital’s contention that we should search the record and award it summary judgment. Mastro, J.P., Chambers, Sgroi and LaSalle, JJ., concur.

[*1]

Mischel & Horn, P.C., New York (Naomi M. Taub of counsel), for appellant.

Jones Jones LLC, New York (Jacqueline R. Mancino of counsel), for respondent.

Judgment, Supreme Court, New York County (Cynthia S. Kern, J.), entered June 10, 2013, for petitioner in the total amount of $39,935.19, and bringing up for review an order, same court and Justice, entered on or about December 12, 2012, which granted the petition to confirm two arbitration awards against respondent, unanimously affirmed, with costs. Appeal from order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Petitioner’s insured, while driving a van during the course of his employment, was involved in a motor vehicle accident with another vehicle, driven by a nonparty who was insured under a policy issued by respondent. Petitioner paid workers’ compensation benefits to its insured in lieu of no-fault benefits, and then sought “loss transfer” reimbursement from respondent pursuant to Insurance Law § 5105, under the mandatory arbitration procedure. Respondent asserted, as an affirmative defense to petitioner’s claim, that it had disclaimed coverage to its insured on the ground of noncooperation.

As this matter involves compulsory arbitration, the awards will be upheld so long as there is evidentiary support, and they are not arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Here, the arbitrators rationally construed Insurance Law § 5105 (a) as providing petitioner insurer a direct right to recover loss transfer reimbursement from respondent, an adverse insurer of a tortfeasor who had a policy in effect at the time of the accident, regardless of respondent’s disclaimer of coverage on noncooperation grounds (see Matter of State Farm Mut. Auto. Ins. Co. v City of Yonkers, 21 AD3d 1110, 1110-1112 [2d Dept 2005]; see also Insurance Law § 5102 [j] [defining “(c)overed person” as having an insurance policy “in effect”]). The loss transfer recovery right of petitioner under Insurance Law § 5105 (a) is separate from the personal right of the insured tortfeasor (and his heirs, assignees, or subrogees) to receive a defense and indemnification from respondent (see Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]; Matter of Liberty Mut. Ins. Co. [Hanover Ins. Co.], 307 AD2d 40, 42 [4th Dept 2003]; State Farm Mut. Auto. Ins. Co., 21 AD3d at 1110-1112).

[*2] Respondent waived any argument that the arbitrators lacked jurisdiction, since it participated fully in the arbitration proceedings, never sought a stay of the arbitration, and did not raise the argument before the arbitrators or before the Supreme Court (see Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583 [1977]; Matter of Philadelphia Ins. Co. [Utica Natl. Ins. Group], 97 AD3d 1153, 1153 [4th Dept 2012], appeal dismissed 20 NY3d 984 [2012]). Nor did respondent assert any argument before the arbitrators that the combined awards exceeded the policy limits. In any event, the argument is unavailing.

We have considered respondent’s remaining arguments and find them unavailing. Concur—Friedman, J.P., Moskowitz, Feinman, Gische and Kapnick, JJ.

[*1]

Civil Court of the City of New York, Kings County, October 5, 2014

APPEARANCES OF COUNSEL

Law Offices of Aloy O. Ibuzor, New York City, for defendant.

Korsunskiy Legal Group, P.C., Brooklyn, for plaintiff.

This case raises anew the seemingly irreconcilable tensions that arise from treating an examination before trial (EUO) as{**56 Misc 3d at 285} both a condition precedent to coverage and as part of the verification procedures. It appears that no court has ruled upon whether an insurance company can issue a denial beyond the 30 day period for failure to appear for an EUO when the insurance company itself has failed to comply with the time lines specified in the verification procedures. This matter was submitted on the issue of whether an insurance company must schedule an EUO of the provider, pursuant to 11 NYCRR 65-3.5 (b), within 15 business days after it completes the assignor’s EUO, and what are the ramifications that flow from a late request for an additional EUO.

Plaintiff Prestige Medical P.C. (plaintiff, provider, or Prestige), a medical provider, brought this action for $2,423.58 for medical services it provided to its assignor Khalil Abdullah (assignor or Abdullah). After the EUO of the assignor was held on February 14, 2012, defendant Travelers Home and Marine Insurance Company (defendant, insurer, or Travelers), by letter dated March 13, 2012, requested an EUO of the provider, and thereafter scheduled the EUO for April 3, 2012. After the provider failed to appear, Travelers issued a follow-up letter, dated April 3, 2012, which rescheduled the EUO for April 23, 2012. After the provider again failed to appear, Travelers issued a denial dated May 9, 2012, based upon the provider’s EUO no-show.

Defendant moves for summary judgment based upon the plaintiff’s EUO no-show and outstanding verification. Plaintiff cross-moves for summary judgment on the grounds that the defendant failed to send out a scheduling letter to the provider for an EUO within 15 business days after holding the EUO of the assignor, as mandated by 11 NYCRR 65-3.5 (b).

In Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011]), the First Department held that a failure to attend an EUO (or independent medical exam [IME]) is a violation of a condition precedent to coverage which vitiates the policy. The First Department reasoned that since failure to appear for an EUO (or IME) cancels the contract as if there was no coverage in the first instance, an insurer could deny all claims retroactively to the date of loss and outside of the 30 day deadline in which to issue a denial. This court has followed Neomy Med., P.C. v American Tr. Ins. Co. (31 Misc 3d 1208[A], 2011 NY Slip Op 50536[U] [Civ Ct, Kings County 2011]; see also Tarnoff Chiropractic, P.C. v{**56 Misc 3d at 286} GEICO Ins. Co., 35 Misc 3d 1213[A], 2012 NY Slip Op 50670[U] [Nassau Dist Ct 2012] [court within Second Department follows Unitrin holding that denial need not be timely]).

The Second Department has also recognized that failure to comply with the insurance policy’s requirement to submit to an EUO or IME “is a material breach of the policy, precluding recovery of the policy proceeds.” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014], citing to Unitrin.) However, the Appellate Term, Second Department, while noting the Unitrin decision, still appears to hold that failure to appear for an EUO or IME is a precludable defense. (Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co., 43 Misc 3d 127[A], 2014 NY Slip Op 50472[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co., 43 Misc 3d 126[A], 2014 NY Slip Op 50468[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014].)

As cogently noted by the Honorable Fred J. Hirsh in Tarnoff, “[a]n EUO is a hybrid between a condition precedent to coverage and verification” (2012 NY Slip Op 50670[U], *5). Most of the provisions relating to EUOs are contained in regulations relating to verification. (Id.; see 11 NYCRR 65-3.5.) Nor does the insurer have an “unfettered right to request an EUO,” as it must have both an objective basis and justification for requesting it. (Id.)

To that end, this court holds that before an insurance company can take advantage of denying the claim beyond the 30 day period pursuant to Unitrin, it must first comply with the notification time lines contained in the verification procedures. 11 NYCRR 65-3.5 (b) authorizes an insurer to request “any additional verification required . . . to establish proof of claim . . . within 15 business days of receipt of the prescribed verification forms” (i.e., the completed application for no-fault benefits [N-F 2 form]) (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]). By properly requesting this additional verification within 15 business days from receipt of the proof of claim form, an insurer may toll the 30 day period in which it must deny the claim. (Prime Psychological Servs., P.C. v Nationwide Prop. & Cas. Ins. Co., 24 Misc 3d 230, 233 [Civ Ct, Richmond County 2009]; see Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723, 724 [Civ Ct, Queens County 2004], citing 11 NYCRR former 65.15 [d] [1].) If the requested verification has not been supplied to the insurer within 30 days after the original{**56 Misc 3d at 287} request, the insurer shall, within 10 days, follow up upon its request for verification either by a telephone call or by mail. (11 NYCRR 65-3.6 [b].)

The insurance regulations provide for EUOs and IMEs as part of an insurer’s “entitlement to ‘additional verification’ following the insurer’s receipt of a provider’s statutory claim forms.” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 19 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd in part 35 AD3d 720 [2006].) Section 65-3.5 (d) provides that if the additional verification required by the insurer is a medical examination, it must be scheduled within 30 days from date of receipt of the prescribed verification forms. (See Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 19 [App Term, 2d Dept, 2d & 11th Jud Dists 2004]; see also Prime Psychological, 24 Misc 3d at 233; All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 20 Misc 3d 554 [Civ Ct, Kings County 2008]; Lumbermens Mut. Cas. Co. v Inwood Hill Med., P.C., 8 Misc 3d 1014[A], 2005 NY Slip Op 51101[U] [Sup Ct, NY County 2005].) Where an EUO is requested as additional verification, an insurer must schedule it within a reasonable time frame and as “expeditiously as possible.” (Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].) An insurer that conducts an EUO has 30 days from the date the EUO is conducted to pay or deny the claim. (Tarnoff, 2012 NY Slip Op 50670, *11, *12; see 11 NYCRR 65-[*3]3.8 [a] [1].)

After the EUO of the assignor was conducted on February 14, 2012, the insurer did not issue a letter requesting an EUO of the provider until March 13, 2012, some 28 calendar days, or 19 business days after the EUO had been conducted. When the provider failed to appear for the scheduled April 3, 2012 EUO, the insurer, on that same day, issued a follow-up letter rescheduling the EUO for April 23, 2012. After the provider again failed to appear, Travelers issued a denial dated May 9, 2012 based upon the provider’s EUO no-show.

This court rules that since defendant failed to abide by the 15 day time frame in which to request additional verification in the form of an additional EUO, as required by 11 NYCRR 65-3.5 (b), it forfeited its right to issue an untimely denial as permitted by the Unitrin decision. The other ramification of Travelers’ untimely request for an additional EUO is the reduction of its time in which to issue its denial after the provider failed to appear for the rescheduled EUO on April 23, 2012.{**56 Misc 3d at 288}

In Nyack Hosp. v General Motors Acceptance Corp. (8 NY3d at 300), the Court of Appeals found that per 11 NYCRR 65-3.8 (j), any deviation from the rules governing verification shall reduce the 30 calendar day period in which an insurer can deny the claim. 11 NYCRR 65-3.8 (l) provides that “[f]or the purposes of counting the 30 calendar days . . . , with the exception of section 65-3.6 [follow-up requirements] . . . , any deviation from the rules set out in this section shall reduce the 30 calendar days allowed.” Since Travelers requested the EUO of the provider 19 days, rather than within 15 days after the EUO of the assignor had been held, its time in which to issue a denial is reduced by four days. Travelers therefore had 26 days from April 23, 2012, or until May 19th, in which to issue a denial. Travelers issued a timely denial on May 9, 2012. Accordingly, Traveler’s motion for summary judgment is granted and the plaintiff’s cross motion for summary judgment is denied.