S&m Supply Inc. v Lancer Ins. Co. (2004 NY Slip Op 50695(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Nassau County (J. Spinola, J.), entered April 23, 2003, which granted partial summary judgment in favor of plaintiff in the amount of $1,014.88, plus interest and attorney’s fees, deemed an appeal from the judgment of the same court, entered pursuant thereto on May 15, 2003, awarding plaintiff the principal sum of $1,014.88, plus interest and attorney’s fees (see Neuman v Otto, 114 AD2d 791 [1985]). [*2]

Judgment affirmed without costs.

Plaintiff, a medical supply house, instituted this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, it moved for summary judgment on the ground that the denial of claim was untimely, the insurer having failed to pay or deny the claim within 30 days of its receipt, in violation of Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). Defendant opposed, on the ground that its requests for a comprehensive narrative from the referring physician and its notices of examinations under oath (EUOs) of plaintiff’s assignor were proper requests for verification, which tolled the commencement of the 30-day period within which defendant was obligated to pay or deny the claim. The court below granted plaintiff’s motion, finding that the denial was untimely inasmuch as the verification requests were not in proper form and therefore were ineffective to toll the 30-day period.

A review of the record indicates that plaintiff established its prima facie entitlement to partial summary judgment by the submission of the statutory forms setting forth “the fact and amount of loss sustained” (Damadian MRI in Elmhurst, P.C. v Liberty Mutual Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th & 10th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant failed to meet its burden, since its papers in opposition to plaintiff’s
motion for summary judgment did not establish that the policy contained an endorsement authorizing EUOs, pursuant to 11 NYCRR 65-1.1 (d), which regulation became effective on April 5, 2002. In the absence of such a showing, defendant failed to demonstrate that its time to deny the claim was tolled (see S&M Supply Inc. v State Farm Mutual Automobile Ins. Co., No. 2003-1087 N C decided herewith). Assuming, however, the existence of an appropriate endorsement provision, defendant’s opposition papers nonetheless were insufficient as they did not contain an affidavit of someone with personal knowledge that its verification requests were actually mailed, or describing the standard operating procedures used by defendant to ensure that its requests were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Since defendant failed to establish by competent evidence that it timely mailed its verification requests, the commencement of the 30-day period in which it was required to pay or deny the claim was not tolled (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]). [*3]

We note that a request for additional verification may be made by letter and need not be on a prescribed form (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]; Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482 [2002]).

McCabe, P.J., and Rudolph, J., concur.

Angiolillo, J., taking no part.
Decision Date: June 30, 2004