April 7, 2009

Alur Med. Supply, Inc. v Progressive Ins. Co. (2009 NY Slip Op 50657(U))

Headnote

The court considered that the defendant failed to establish that the statutory time period in which it had to pay or deny the plaintiff's claim was tolled, as its follow-up verification request was sent prior to the expiration of the 30-day period within which the requested verification had to be provided. The main issue decided was whether the defendant was precluded from asserting its defense of lack of medical necessity, and the holding was that the defendant failed to timely deny plaintiff's claim and is precluded from raising most defenses, including its proffered defense of lack of medical necessity. The judgment of the lower court granting the plaintiff's motion for summary judgment was affirmed.

Reported in New York Official Reports at Alur Med. Supply, Inc. v Progressive Ins. Co. (2009 NY Slip Op 50657(U))

Alur Med. Supply, Inc. v Progressive Ins. Co. (2009 NY Slip Op 50657(U)) [*1]

Alur Med. Supply, Inc. v Progressive Ins. Co.

2009 NY Slip Op 50657(U) [23 Misc 3d 130(A)]

Decided on April 7, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2008-416 Q C.

Alur Medical Supply, Inc. as assignee of TERESA RADRIGUEZ, 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 January 3, 2008, deemed from a judgment of the same court entered January 25, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 3, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,284.78.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that the
supplies plaintiff provided were not medically necessary. The Civil Court granted plaintiff’s motion for summary judgment, finding that defendant was precluded from asserting its defense since it failed to establish that the statutory time period in which it had to pay or deny plaintiff’s claim was tolled, as its follow-up verification request was sent prior to the expiration of the 30-day period within which the requested verification had to be provided. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal regarding plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass on the propriety of the implicit determination of the Civil Court with respect thereto.

Since defendant’s papers established that it mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Infinity Health Prods., Ltd. [*2]
v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]). Consequently,
defendant failed to timely deny plaintiff’s claim and is precluded from raising most defenses, including its proffered defense of lack of medical necessity (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]). Accordingly, the Civil Court properly granted plaintiff’s motion for summary judgment, and the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: April 07, 2009