December 10, 2004

Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co. (2004 NY Slip Op 24505)

https://www.beynensonlaw.com/case-law/diagnostic-rehab-med-serv-p-c-v-travelers-indem-co-2004-ny-slip-op-24505/

Court: Appellate Term, Second Department
Decided: December 10, 2004
Citation: 2004 NY Slip Op 24505 · 6 Misc 3d 68
Posture: Motion to dismiss (CPLR 3211)
Outcome: Provider prevailed
Issues: Assignments and standing Verification requests

Cite as

Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co., 6 Misc 3d 68 (App Term, 2d Dept 2004)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer waived the assignment defect by neither seeking additional verification nor identifying the deficiency in its denial. The Appellate Term, Second Department, reversed the order and denied the insurer's motion to dismiss the provider's action for assigned no-fault benefits. The claimant had signed the purported assignment, but the form named no assignee. The insurer's failure to address that defect during claim processing waived the defense. The court expressly declined to adhere to A.B. Med. Servs. v Progressive Ins. to the extent it was inconsistent with this determination.

Reported in New York Official Reports at Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co. (2004 NY Slip Op 24505)

Diagnostic Rehab. Med. Serv. P.C. v Travelers Indem. Co.

2004 NY Slip Op 24505 [6 Misc 3d 68]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 13, 2005

[*1]

Diagnostic Rehab. Medicine Serv. P.C., as Assignee of Iris Mazariegos, Appellant,
v
Travelers Indemnity Company, Respondent.

Supreme Court, Appellate Term, Second Department, December 10, 2004

APPEARANCES OF COUNSEL

Israel, Israel & Purdy LLP, Great Neck (William M. Purdy of counsel), for appellant. Moore & Associates, New York City, and Carol R. Finocchio, New York City (Lisa M. Comeau of counsel), for respondent.

{**6 Misc 3d at 36} OPINION OF THE COURT

Memorandum.

Order unanimously reversed without costs and defendant’s motion to dismiss the complaint denied.

In this action to recover assigned no-fault benefits, the purported assignment form is signed by the claimant but does not designate a named assignee. However, defendant insurer, having failed to seek additional verification or allege any deficiency in the assignment in its denial of claim form, waived any defenses with respect thereto (see Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; A.B. Med. Servs., PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [2004]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists 2001]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]). Accordingly, defendant’s motion to dismiss the complaint should [*2]have been denied. To the extent that A.B. Med. Servs. v Progressive Ins. (2003 NY Slip Op 50790[U] [App Term, 2d & 11th Jud Dists 2003]) may be inconsistent with our decision herein, we no longer adhere to it.

The parties’ remaining contentions are without merit or rendered academic in view of the determinations herein.

Pesce, P.J., Aronin and Patterson, JJ., concur.

Cited in this decision

A label shows how this decision treated the case it cites.

A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co. (2004 NY Slip Op 24506) FollowedThe providers' billing manager affidavit failed to establish submission of properly completed claim forms.
New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 05626)The insurer failed to establish mailing of assignment-verification requests and could not defeat the hospitals' summary judgment motion.

Cited by

A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co. (2004 NY Slip Op 24506)The providers' billing manager affidavit failed to establish submission of properly completed claim forms.
Ocean Diagnostic Imaging P.C. v Allstate Ins. Co. (2005 NY Slip Op 50189(U))The insurer's conclusory submissions failed to raise a triable issue of staged-accident fraud.
Medwide Med. Supply Inc. v Country-Wide Ins. Co. (2005 NYSlipOp 51078(U))The insurer's defenses failed because one denial was late, its medical reviews were incompetent, and assignment objections were waived.
Siegel v Progressive Cas. Ins. Co. (2004 NY Slip Op 24532)An assignment is an essential element of a provider's no-fault claim, and an insurer cannot waive its complete absence.
A.B. Med. Servs. PLLC v Encompass Ins. (2005 NY Slip Op 51892(U))Transportation benefits are nonassignable under the revised no-fault regulations for claims submitted on or after April 5, 2002.
A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NYSlipOp 51316(U))The insurer failed to prove mailing of IME notices to the assignors, defeating its nonappearance defense to summary judgment.

Similar decisions

Damadian MRI in Canarsie, P.C. v General Assur. Co. (2006 NY Slip Op 51048(U))The insurer waived defenses concerning assignment forms by failing to object timely to their completeness or seek verification.
Diagnostic Rehab. Medicine Serv., P.C. v Farm Family Cas. Ins. Co. (2005 NYSlipOp 50826(U))The insurer's late denial waived medical necessity and assignment defenses, and its coverage opposition raised no factual issue.
PR Med., P.C. v Travelers Home & Mar. Ins. Co. (2018 NY Slip Op 51649(U))The insurer established timely EUO notices and denials and the assignor's two nonappearances; the provider raised no triable issue.
Central Radiology Servs., P.C. v Commerce Ins. Co. (2011 NY Slip Op 50948(U))The insurer established that the assignor misrepresented the state of residence and was ineligible for no-fault benefits under the policy.
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 29271)The insurer's proof raised a factual question about the assignor's employment status that required Workers' Compensation Board resolution.