March 22, 2022

Kolb Radiology, P.C. v Hereford Ins. Co. (2022 NY Slip Op 22089)


The court considered whether the plaintiff provided the defendant with an MRI diagnostic test and film for payment pursuant to the no-fault insurance regulations and fee schedule. The main issue was the defendant's motion for summary judgment, which was based on the grounds that the plaintiff's claim was premature as responses were outstanding to verification requests. The court ultimately held in favor of the defendant, granting their motion and dismissing the matter without prejudice as premature. The court found that the defendant's motion for summary judgment was justified based on the plaintiff's refusal to provide the MRI films until they received a $5 fee, while the defendant's response aiming to promote litigation and delay payment. Therefore, the court granted the defendant's motion and denied the plaintiff's cross motion.

Reported in New York Official Reports at Kolb Radiology, P.C. v Hereford Ins. Co. (2022 NY Slip Op 22089)

Kolb Radiology, P.C. v Hereford Ins. Co. (2022 NY Slip Op 22089)
Kolb Radiology, P.C. v Hereford Ins. Co.
2022 NY Slip Op 22089 [75 Misc 3d 323]
March 22, 2022
Helbock, Jr., J.
Civil Court of the City of New York, Richmond County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 8, 2022


Kolb Radiology, P.C., as Assignee of Claudia Walker, Plaintiff,
Hereford Insurance Company, Defendant.

Civil Court of the City of New York, Richmond County, March 22, 2022


The Law Offices of Rubin & Nazarian for defendant.

Rizzo Law Group, PLLC, P.C. for plaintiff.

{**75 Misc 3d at 324} OPINION OF THE COURT

Robert J. Helbock, Jr., J.

The decision on defendant’s motion for summary judgment is as follows:

Plaintiff, Kolb Radiology, P.C., as assignee of Claudia Walker (hereinafter, assignor), commenced this action against the defendant, Hereford Insurance Company, to recover assigned first-party no-fault benefits for medical treatment provided to assignor in the amount of $1,791.73.


Currently before the court is defendant’s motion seeking an order pursuant to CPLR 3212 granting summary judgment and dismissing plaintiff’s complaint as premature in that there are outstanding responses to defendant’s verification requests. By way of a cross motion, plaintiff submitted opposition to defendant’s motion. Defendant filed an affirmation in further support to its motion and in opposition to plaintiff’s cross motion. The motion was argued before the undersigned February 17, 2022, and submitted for decision.

Defendant moves for summary judgment dismissing plaintiff’s complaint on the grounds that defendant established its prima facie case in that plaintiff’s claim is premature as responses are outstanding to defendant’s verification requests. Plaintiff argues that its response to defendant’s request was made on August 28, 2020, with all documents in its control or possession. Plaintiff also cross-moves for summary judgment on the grounds that it has established its prima facie entitlement to judgment.

A motion for summary judgment should be granted if “upon all the papers and proof submitted, the cause of action . . . shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any [of the] part[ies]” (CPLR 3212 [b]). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Chiara v Town of New Castle, 126 AD3d 111, 125 [2d Dept 2015], citing Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57 [1966]).{**75 Misc 3d at 325}

The issue presented in the instant motion appears to be one of first impression in Richmond County, and a relatively novel issue in the Civil Court of New York City.[FN*] The plaintiff performed an MRI that was billed and submitted to the defendant pursuant to the no-fault insurance regulations and subject to the applicable fee schedule. The defendant received the bills and made a timely demand for verification documents, which included a copy of the MRI films. The plaintiff responded to the verification demands but did not supply the MRI films requested by the defendant. Instead, the plaintiff demanded the payment of a $5 fee, as provided in ground rule 8 of the Workers’ Compensation Fee Schedule. The defendant replied to plaintiff stating its response was incomplete and improper but did not specifically address the demand for the payment of the fee. The result was a stalemate that must now be decided by this court.

The no-fault insurance system was established to expedite medical treatment and payment for injuries arising from motor vehicle accidents. In this instance, the plaintiff provided the MRI diagnostic test to the injured party, relying upon the contractual and statutory obligation of the defendant to pay for necessary health care pursuant to the fee schedule. Similarly, the plaintiff should have provided the films requested by the defendant and then billed defendant the statutory costs of $5. Instead, the plaintiff refused to provide the MRI films until it received the $5 from defendant. That act appears to this court to be more shortsighted than productive.


Conversely, the defendant received the demand for $5 and instead of promising or making payment of the $5, the defendant responded that the plaintiff only partially complied with the verification request and demanded the full compliance. An insurer is statutorily required to pay or deny a claim within 30 calendar days after proof of claim is received (11 NYCRR 65-3.8 [a]), but the deadline may be extended if the insurer makes a timely demand for additional verification of the claim (id. § 65-3.5; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999]).

What concerns the court is that the defendant’s response appears strategic, aimed at promoting further litigation and thus delaying payment, rather than responding and addressing the{**75 Misc 3d at 326} dispute that was delaying the plaintiff’s compliance with the verification request.

For guidance, the court looks to the Office of the General Counsel of the NYS Department of Financial Services (formerly the State Insurance Department) that issued an opinion on April 4, 2008 (Ops Gen Counsel NY Ins Dept No. 08-04-08 [Apr. 2008]) entitled “Reproduction Cost of a Magnetic Resonance Imaging (‘MRI’) Film Necessary to Verify a No-Fault Insurance Claim.” That opinion directs that if the original MRI films are provided to the insurance company, then there is no charge. If a copy is provided to the insurance company, then the insurance company must pay the fee schedule rate. Since there is an option of producing an original or a reproduction, logically speaking, the insurance company would have to receive the reproduced MRI films first before payment would be made.

In this instance, the defendant would have had to receive the MRI film reproductions, and once in receipt of the copies, made payment to plaintiff. While this process appears overly bureaucratic, it is the procedure directed by the fee schedule.

Since both parties acknowledge that the films were not provided, and they were requested as part of the verification request, the fact that the defendant did not pay for the films in advance is not a sufficient justification for the delay in complying with the verification request.

Therefore, the defendant’s motion is granted, and the matter is dismissed without prejudice as premature. Plaintiff’s cross motion is denied without prejudice as moot.


Footnote *: A thorough search finds the issue first arose in June 2021 between the same attorneys for the parties herein in the matter of Lenox Hill Radiology & MIA, P.C. v Hereford Ins. Co. (72 Misc 3d 702 [Civ Ct, NY County 2021]).