King's Med. Supply Inc. v Kemper Auto & Home Ins. Co.

[*1] King's Med. Supply Inc. v Kemper Auto & Home Ins. Co. 2005 NYSlipOp 50450(U) Decided on March 31, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: March 31, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2004-350 K C

KING'S MEDICAL SUPPLY INC. a/a/o Lamar Angrum, Appellant,

against

KEMPER AUTO & HOME INS. CO., Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (J. Battaglia, J.), entered December 3, 2003, as denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff's motion is granted to the extent of awarding partial summary judgment in favor of plaintiff in the principal sum of $660 and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees thereon and for all further proceedings on the remaining claim; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff provider established its entitlement to summary judgment prima facie by proof that it submitted statutory claim forms, setting forth the fact and the amount of the loss sustained ($660 and $895), 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]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant issued timely requests for verification in the form of independent medical examinations (IMEs) (11 NYCRR 65.15 [c] [1], now 11 NYCRR 65-3.5 [a]). Upon assignor's failure to appear for the first scheduled IME, defendant issued a claim denial form for the $660 claim, citing as the ground for denial, the eligible injured person's failure to attend the IME. While this denial was timely under the 30-day claim determination rule (11 NYCRR 65.15 [g] [1] [i], now 11 NYCRR 65-3.8 [a] [*2][1]), the sole ground set forth therein, the failure to appear for a post-claim IME, under the circumstances presented, lacked merit as a matter of law. Having requested IMEs post-claim IMEs, defendant was obligated to "follow up" its initial verification request with a second IME request within 10 days of the date on which the party to be examined failed to respond (see 11 NYCRR 65.15 [d] [3], now 11 NYCRR 65-3.5 [c]; 11 NYCRR 65.15 [e] [2], now 15 days per 11 NYCRR 65-3.5 [b]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). By failing to "follow up," defendant abandoned its request for verification and therefore may not, as a matter of law, use the failure to provide verification, here an IME, as a basis to deny the claim (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Thus, the denial form was 'ineffective to avoid preclusion" (Amaze Med. Supply v Eagle Ins. Co., 3 Misc 3d at 44; see Nyack Hosp. v State Farm Mut. Auto Ins. Co., 11 AD3d at 664) as to all defenses to the $660 claim with exceptions here inapplicable, and summary judgment should have been granted thereon (see S & M Supply v Allstate Ins. Co., 2003 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists]).

With respect to the $895 claim, which defendant concededly never paid or denied, defendant asserted plaintiff's failure to respond to two verification request letters, dated January 18, 2000 (3 days after the claim's receipt) and February 19, 2000 which, if timely mailed, would constitute a defense to the action on the claim as an insurer need not pay or deny a claim until all requested verification is received (see 11 NYCRR 65.15 [g] [2] [iii], now 11 NYCRR 65-3.8 [b] [3]). In our view, defendant's proof of mailing sufficed to raise a triable issue of the timeliness of mailing. Thus, summary judgment was properly denied as to the claim for $895.

Accordingly, as to the claim for $660, the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and as to the remaining claim, the matter is remanded for all further proceedings thereon.
Decision Date: March 31, 2005