April 7, 2009
Alur Med. Supply, Inc. v Progressive Ins. Co. (2009 NY Slip Op 50657(U))
https://www.beynensonlaw.com/case-law/alur-med-supply-inc-v-progressive-ins-co-2009-ny-slip-op-50657u/
- Decided
- April 7, 2009
- Citation
- 2009 NY Slip Op 50657(U) · 23 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 3 later decisions (see Cited by)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
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) [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| This opinion is uncorrected and will not be published in the printed Official Reports. |
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.
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
Cited in this decision
A label shows how this decision treated the case it cites.
- Infinity Health Prods., Ltd. v Eveready Ins. Co. (2008 NY Slip Op 28271) FollowedThe insurer's follow-up verification demand, mailed 27 days after its initial demand, was premature and did not toll the claim determination period.
- Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946) FollowedAn insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.
Cited by
A label shows how the later decision treated this one.
- D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51584(U)) FollowedThe insurer's verification follow-ups mailed on the 30th calendar day were premature and did not toll its time to pay or deny.
- Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 51578(U)) FollowedThe insurer's premature verification follow-up left its denial untimely and precluded its medical-necessity defense.
- D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51579(U)) FollowedThe insurer's verification follow-ups mailed on the 30th calendar day were ineffective, defeating its argument that the action was premature.
Similar decisions
- Alur Med. Supply, Inc. v Eveready Ins. Co. (2009 NY Slip Op 51492(U))The provider's action was premature because it began before responses to timely verification requests were served.
- Alur Med. Supply, Inc. v GEICO Ins. Co. (2010 NY Slip Op 51053(U))The provider failed to prove submission of its claim because its mailing certificate identified a different insurer.
- Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50700(U))The insurer's unrebutted affirmed peer review report established lack of medical necessity and warranted summary judgment.
- Alur Med. Supply, Inc. v Country-Wide Ins. Co. (2008 NY Slip Op 51234(U))The provider failed to establish a business-records foundation, and the insurer's IME report did not address the necessity of the supplies.
- Alfa Med. Supplies v Progressive Northeastern Ins. Co. (2010 NY Slip Op 51733(U))The insurer established full payment of one claim and an unrebutted medical necessity defense to the remaining claim.