November 5, 2008

Alur Med. Supply, Inc. v Progressive Ins. Co. (2008 NY Slip Op 52191(U))

Headnote

The relevant facts of the case involved a provider who sought to recover assigned first-party no-fault benefits. The provider alleged that the insurance company failed to timely deny the claim. The main issue decided by the court was whether the insurance company's request for follow-up verification was premature, and if the statutory time period to pay or deny the claim was tolled due to the assignor's delay in appearing for an examination under oath. The court held that the insurance company's request for verification was not proper, and therefore the 30-day claim determination period was not tolled. As a result, the insurance company's denial of the claim form was untimely, and it was precluded from raising certain defenses. The judgment of the lower court granting the provider's motion for summary judgment was affirmed.

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)) [*1]

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 5, 2008

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.

Alur Medical Supply, Inc. a/a/o JEREMY CALDERON, Respondent,
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