Shtarkman v Allstate Ins. Co. (2005 NYSlipOp 51028(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Queens County (D. Butler, J.), dated March 10, 2004, which denied his motion for summary judgment.

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

In this action to recover assigned first-party no-fault benefits, plaintiff established a prima facie entitlement to summary judgment by proof that he 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Plaintiff submitted proof in admissible form that the claim was mailed to defendant on October 20, 1997. It is uncontroverted that defendant did not timely pay or deny the claim within the 30-day statutory period subsequent to the receipt of the claim, nor did it seek to extend that time by requesting verification (see 11 NYCRR 65.15 [g] [3]; [d] [1], now 11 NYCRR 65-3.8 [c]; 65-3.5 [a]). Accordingly, contrary to the determination of the court below, defendant is precluded from [*2]raising the defense of intoxication (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).

There is no merit to defendant’s contention that its denial of claim form dated August 7,1997, which preceded its receipt of the claim, may operate as a valid denial of no-fault benefits. The insurance regulations provide that an insurer must either pay or deny the claim “within 30 calendar days after proof of claim is received” (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]). Further, “no-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim which shall include verification of all of the relevant information requested” pursuant to the verification rules (11 NYCRR 65.15 [g] [1] [i], now 11 NYCRR 65-3.8 [a] [1]). The regulations further provide that “an insurer shall not issue a denial of claim form (NYS form NF-10) prior to its receipt of verification of all of the relevant information requested pursuant to section 65-3.5” (11 NYCRR 65-3.8 [b] [3]).

Accordingly, pursuant to the insurance regulations, defendant’s blanket general denial of claim which was issued by the defendant prior to its receipt of the plaintiff’s claim for no-fault benefits does not constitute a valid denial of no-fault benefits for said claim (see A&S Med. v Allstate Ins. Co., 196 Misc 2d 322 [App Term, 1st Dept 2003], affd 15 AD3d 170 [2005] [defendant’s untimely denial of claim cannot be deemed timely on the basis of an earlier blanket disclaimer issued directly to plaintiff’s assignor prior to plaintiff’s rendition of services and submission of claim]; cf. New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002] [insurer may not issue a denial of claim pending a verification request and plaintiff’s time to respond has not run out]).

The denial of claim form is also fatally defective since it omitted numerous items of requested information, and thus was incomplete (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). [*3]

Accordingly, plaintiff’s motion for summary judgment is granted, and 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.
Decision Date: June 27, 2005