July 14, 2009

Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 51578(U))

Headnote

The court considered the issue of whether a follow-up request for verification of a no-fault benefits claim was issued prematurely, which would preclude the insurance company from raising certain defenses. The main issue decided in the case was whether the insurance company's premature follow-up request for verification affected its ability to deny the provider's claim on the basis of lack of medical necessity. The holding was that the insurance company's premature follow-up request for verification was without effect, and as a result, the 30-day claim determination period was not tolled. The insurance company was therefore precluded from raising certain defenses, including lack of medical necessity, and its failure to timely deny the provider's claim meant that there was no triable issue of fact. The judgment in favor of the provider was affirmed.

Reported in New York Official Reports at Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 51578(U))

Radiology Today, P.C. v GEICO Ins. Co. (2009 NY Slip Op 51578(U)) [*1]

Radiology Today, P.C. v GEICO Ins. Co.

2009 NY Slip Op 51578(U) [24 Misc 3d 138(A)]

Decided on July 14, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 14, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2008-1014 Q C.

Radiology Today, P.C. a/a/o EDUARD SOSNOVSKIY, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered April 8, 2008, deemed from a judgment of the same court entered May 6, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 8, 2008 order which, insofar as appealed from, granted so much of plaintiff’s motion as sought summary judgment with respect to plaintiff’s claim for $879.73, awarded plaintiff the principal sum of $879.73.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, insofar as is relevant to this appeal, granted so much of plaintiff’s motion for
summary judgment as sought summary judgment with respect to plaintiff’s $879.73 claim, finding, inter alia, that after defendant initially requested verification of the claim, it failed to allow 30 days to pass before issuing a second request. This appeal by defendant ensued. A judgment was subsequently entered.

Inasmuch as defendant raises no issue on appeal as to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the Civil Court with respect thereto.

Defendant’s papers establish that defendant mailed its follow-up request for verification on the 30th calendar day after it mailed its verification request. As a result, the follow-up request was premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As defendant failed to timely deny plaintiff’s claim, defendant was 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 NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Since defendant failed to raise a triable issue of fact, the judgment is affirmed. [*2]

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009