Quality Health Prods., Inc. v Auto One Ins. Co. (2008 NY Slip Op 51530(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered January 24, 2007. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff established a prima facie entitlement to summary judgment by proof that it
submitted a claim, 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 [2004]; Mani Med. P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]). The burden then shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Inasmuch as defendant timely sought verification with respect to the medical necessity of the supplies furnished by plaintiff to its assignor, upon receipt of such verification on November 23, 2005, defendant’s 30-day claim determination period began to run (Insurance Department [*2]Regulations [11 NYCRR] § 65-3.5). While defendant argues that its time to pay or deny plaintiff’s claim was further tolled because defendant requested that plaintiff’s assignor submit to an examination under oath (EUO), the record does not indicate that defendant made such a request for additional verification within 15 days of defendant’s receipt of the letter of medical necessity. As a result, defendant failed to show that its 30-day claim determination period was still tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.5). In view of the foregoing, defendant’s denial of claim form, which was not mailed until January 4, 2006, was untimely and defendant was precluded from raising fraudulent billing as a defense in this action (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]). Consequently, plaintiff’s motion for summary judgment should have been granted.

Accordingly, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 10, 2008