January 6, 2010
Perfect Point Acupuncture, P.C. v Auto One Ins. Co. (2010 NY Slip Op 50010(U))
https://www.beynensonlaw.com/case-law/perfect-point-acupuncture-p-c-v-auto-one-ins-co-2010-ny-slip-op50010u/
- Judge
- Sweeney, J.
- Decided
- January 6, 2010
- Citation
- 2010 NY Slip Op 50010(U) · 26 Misc 3d 1207(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Perfect Point Acupuncture, P.C. v Auto One Ins. Co. (2010 NY Slip Op 50010(U))
| Perfect Point Acupuncture, P.C. v Auto One Ins. Co. |
| 2010 NY Slip Op 50010(U) [26 Misc 3d 1207(A)] |
| Decided on January 6, 2010 |
| Civil Court Of The City Of New York, Kings County |
| Sweeney, J. |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Civil Court of the City of New York, Kings County
Perfect Point
Acupuncture, P.C. A/A/O JOCELYNE LOUIS, Plaintiff,
against Auto One Insurance Company, Defendant |
97213/2007
Plaintiff’s Counsel:
Law Offices of Melissa Betancourt
155 Kings Highway, 3rd Floor
Brooklyn NY 11223
Tel.: (718)336-8076
Defendant’s Counsel
Bruno, Gerbino & Soriano, LLP
445 Broad Hollow Road, Suite 220
Melville, NY 11747
Tel.: (631) 390-0011
Peter P. Sweeney, J.
In this action to recover assigned first-party no-fault benefits, both the plaintiff and defendant move for summary judgment.
Plaintiff established its prima facie entitlement to summary judgment by proving the submission of statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]). The burden then shifted to defendant to raise a triable issue of fact ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] ).
In opposition to the motion and in support of its cross-motion, defendant demonstrated that after receiving the claims for assigned first-party no-fault benefits, it timely requested additional verification of the claims by sending a letter to plaintiff’s assignor on August 21, 2006, directing her to appear for an independent medical examination (IME) on a September 6, 2006. When she failed to appear for the examination, defendant sent her a second letter on September 7th, rescheduling the examination for September 20, 2006. Defendant’s submissions sufficiently demonstrated that the scheduling letters were mailed to plaintiff’s assignor on the above dates and [*2]that plaintiff’s assignor failed to appear for the examinations.
It is well settled that an insurer is required to pay or deny a claim for no-fault benefits within 30 days after the claimant provides proof of the claim (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]) and that its failure to do so will preclude it from raising most defenses to the claim (see Presbyterian Hosp. in City of NY, supra, 90 NY2d at 282). An insurer may extend the 30 day period in which it has to pay or deny a claim by making a request for additional verification of the claim “within 15 business days of receipt [of one] of the prescribed verification forms” (11 NYCRR 65-3.5[b]; see also Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 [2nd Dept 2005]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2nd Dept 2002]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2nd Dept 2001]). If the verification is not provided 30 calendar days after the original request, “[a]t a minimum … the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call, properly documented in the file, or by mail” (11 NYCRR 65-3.6[b]). An insurer does not have to pay or deny a claim until it has received verification of all of the relevant information requested (see e.g. Montefiore Med. Ctr. v Gov’t Empls. Ins. Co., 34 AD3d 771 [2d Dept 2006]; see also Mount Sinai Hosp. v Allstate Ins. Co., 25 AD3d 673, 674 [2d Dept 2006]).
At oral argument, plaintiff’s counsel maintained, inter alia, that since defendant did not strictly comply with the time limitations set forth in 11 NYCRR 65.15[e][2], it lost the toll of the 30-day rule to pay or deny the claim. Plaintiff’s counsel pointed out that the second IME letter was mailed only 17 days after the first. She maintained that pursuant to 11 NYCRR 65.15[e][2], defendant was required to wait a full 30 days after the initial mailing of the IME request before mailing out the second request. The Court finds plaintiff’s argument to be unavailing.
In Infinity Health Products, Ltd. v Eveready Ins. Co., 67 AD3d 862, 2009 NY Slip Op 08585 [2d Dept ]), the Court recently held that it “[i]t would be inequitable to award summary judgment to the plaintiff, which ignored two verification requests, merely because the defendant, slightly prematurely, sent its second verification request a mere 3 days before the expiration of a full 30 days after the first verification request had been sent” (2009 NY Slip Op 08585 at 2 [citations omitted]) The Court reasoned that “it would be incongruous to conclude that the insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer’s requests…. and [that] [s]uch a result is not contemplated by the no-fault law’ or its regulations, which should be interpreted to promote the expeditious handling of verification requests and prompt claim resolution” (Id.).
The Court held that “inasmuch as the plaintiff did not respond to either of the verification requests, the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . and that . . . plaintiff’s action [was therefore] premature” (Id.). The [*3]Court further held that “plaintiff was not entitled to summary judgment on the complaint, and the defendant’s cross motion for summary judgment dismissing the complaint should have been granted . . .without prejudice to commencement of a new action” (Id. [citations omitted]).
In this Court’s view, the holding in Infinity Health Products, Ltd. requires dismissal of the within action, without prejudice to its recommencement. Here, as in Infinity Health Products, Ltd., it would be inequitable to award summary judgment to the plaintiff, whose assignor ignored two verification requests, merely because the defendant did not strictly adhere to the time frames set forth in 11 NYCRR 65-3.6[b] for mailing out second requests for additional verification of a claim . It would be incongruous to conclude that 11 NYCRR 65-3.6[b] mandates a result that would penalize the defendant for its diligent attempts to obtain additional verification of the claims and reward plaintiff whose assignor ignored the requests.
This court recognizes that this case is not on all fours with Infinity Health Products, Ltd.. In Infinity Health Products, Ltd., the defendant sent its second written verification request a mere 3 days before the expiration of a full 30 days after the first verification request had been sent. Here, the second written verification request was sent out 13 days before the expiration of the 30 day period referred to in 11 NYCRR 65-3.6[b]. Under the facts and circumstances of this case, however, this distinction does not warrant a contrary result.
When plaintiff’s assignor failed to appear for the IME on September 6, 2009, the re-scheduling letter was mailed to her on the following day. Unlike in Infinity Health Products, Ltd., once plaintiff’s assignor failed to appear for the IME, there is no legitimate reason why defendant should have waited a full 30 days from the mailing of the first letter to mail out the re-scheduling letter. Indeed, had defendant waited a full 30 days, it would have had acted in contravention of one of the primary policies underlying the “no-fault law”; which is “to promote the expeditious handling of verification requests and prompt claim resolution” (Infinity Health Products, Ltd., supra, 67 AD3d 862, 2009 NY Slip Op 08585 at 2). Further, the Court notes that when plaintiff’s assignor failed to appear for the re-scheduled IME, 30 days had elapsed from the time that the first scheduling letter had been sent to her.
Based on the foregoing, it is hereby
ORDERED that Plaintiff’s motion for summary Judgment is DENIED; and it is further
ORDERED that defendant’s cross-motion for summary judgment dismissing the complaint is GRANTED to the extent that plaintiff’s complaint is DISMISSED without prejudice to the commencement of a new action.
This constitutes the decision and order of the court.
[*4]Dated: January 6, 2010__________________________
PETER P. SWEENEY
Civil Court Judge
Legal questions (4)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held the insurer proved mailing of both IME letters and the assignor's nonappearance, rejecting the argument that a follow-up sent 17 days after the first letter forfeited the toll.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Timely requests went unanswered; the claim is not overdue and the action is premature
Dismissed the action without prejudice as premature because the assignor ignored two IME requests, holding a follow-up sent before 30 days elapsed still kept the 30-day period from running.
Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider established its prima facie case by proving submission of claim forms, the fact and amount of the loss, and that payment was overdue, shifting the burden to the insurer.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Found the insurer's submissions sufficiently demonstrated that both IME scheduling letters were mailed to the assignor on the stated dates.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
- Montefiore Med. Ctr. v Government Empls. Ins. Co. (2006 NY Slip Op 08953)An insurer's additional verification request following an N-F5 submission need not use a prescribed form to toll the payment deadline.
- Mount Sinai Hosp. v Allstate Ins. Co. (2006 NY Slip Op 00490)The insurer raised a triable issue about the provider's verification compliance but failed to establish entitlement to dismissal.
- Infinity Health Prods., Ltd. v Eveready Ins. Co. (2009 NY Slip Op 08585) FollowedA provider that ignored two verification requests was estopped from invoking preclusion based on a follow-up sent three days early.
Similar decisions
- Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NYSlip Op 51935(U))The provider's EUO objections were unpreserved, and the insurer established timely notices and denials and the provider's nonappearance.
- Boai Zhong Yi Acupuncture Servs. PC v General Assur. Ins Co. (2005 NY Slip Op 50329(U))The provider obtained summary judgment because two denials were late and the third relied on an unavailable IME nonappearance defense.
- SCOB, LLC v Liberty Mut. Ins. Co. (2026 NY Slip Op 51484(U))The insurer failed to prove proper mailing of IME notices or nonappearance, given an address discrepancy and a defective affirmation.
- Back to Back Chiropractor, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51088(U))The provider's failure to object to improper verification demands left the payment period tolled and its claim premature.
- Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51497(U))The insurer established timely mailing of the IME scheduling letters and the assignor's failure to appear for the scheduled IMEs. In the provider's action for assigned no-fault benefits, the Civil Court denied the insurer's cross motion for summary judgment, leaving the IME nonappearance defense for trial.