October 21, 2003

A.B. Med. Servs. PLLC Royalton Chiropractic P.C. v Lumbermens Mut. Cas. Co. (2003 NY Slip Op 51392(U))

Headnote

An EUO request does not toll the 30-day payment-or-denial period under the no-fault regulation governing services rendered in 2001. The Appellate Term, Second Department, reversed the denial of the provider's summary judgment motion and granted judgment for all claims. Two claims were neither paid nor denied. Two others were untimely denied because 11 NYCRR 65.12 required medical examinations but did not require EUOs; that requirement appeared the following year in 11 NYCRR 65-3.5 (e). For two claims the insurer denied receiving, the billing manager's affidavit of mailing and postmarked receipt supported recovery. The matter was remanded to calculate interest and attorney fees under Insurance Law § 5106 (a), 11 NYCRR 65-3.9 (a), and 11 NYCRR 65-3.10 (a).

Reported in New York Official Reports at A.B. Med. Servs. PLLC Royalton Chiropractic P.C. v Lumbermens Mut. Cas. Co. (2003 NY Slip Op 51392(U))

A.B. Med. Servs. PLLC Royalton Chiropractic P.C. v Lumbermens Mut. Cas. Co.
2003 NY Slip Op 51392(U)
Decided on October 21, 2003
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
Appellate Term, Second Department


[*1]
This opinion is uncorrected and will not be published in the Official Reports.

Digest-Index Classification:
Insurance—No-Fault Automobile Insurance

Decided on October 21, 2003
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:PESCE, P.J. ARONIN and PATTERSON, JJ.
NO. 2002-1801 K C

A.B. MEDICAL SERVICES PLLC ROYALTON CHIROPRACTIC P.C. (a/a/o George Frederick,) Appellant, –

against

LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent.


[*2]

Appeal by plaintiff from an order of the Civil Court, Kings County (K. Yellen, J.), entered on October 17, 2002, which denied its motion for summary judgment.


Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted in the principal sum of $3,486.96 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff sues to recover first party no-fault benefits for medical and chiropractic services it provided to the injured assignor in the sum of $3,486.96. In our opinion, plaintiff’s motion for summary judgment should have been granted.

Under the circumstances presented, plaintiff is entitled to recover the claims in the sums of $290.64 and $154.30 inasmuch as defendant failed to pay or deny said claims. The plaintiff is also entitled to recover for the claims in the sums of $585.64 and $182.18. The Insurance Regulation in effect in 2001, when the medical and chiropractic services were rendered, was section 65.12 (11 NYCRR 65.12) which stated that the eligible injured person shall submit to medical examinations when, and as often as, the company may reasonably require. There was no provision requiring the eligible person to appear for an examination under oath until the following year (11 NYCRR 65-3.5 [e]; Bronx Medical Services P.C. ex rel. Rivera v Lumbermens Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]).

Accordingly, defendant’s request for an examination under oath did not toll the [*3]30-day period within which defendant was required to pay or deny the claim. Under the circumstances, defendant’s denial was untimely.

The plaintiff is likewise entitled to recover for bills in the sums of $1,972.08 and $302.12. Even though the defendant denies receiving said claims, the plaintiff’s practice and billing manager submitted an affidavit in which she stated that she mailed the NF-3 forms therefor from each of the providers to defendant on May 4, 2001. She attached a postmarked receipt dated May 4, 2001.

The matter is accordingly remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see also St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641).
Decision Date: October 21, 2003

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