Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins. Co.

[*1] Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins. Co. 2006 NY Slip Op 51202(U) [12 Misc 3d 135(A)] Decided on June 23, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1207 K C.

Boai Zhong Yi Acupuncture Services, P.C., as assignee of Viktoria Grishina, Respondent,

against

New York Central Mutual Fire Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered July 11, 2005. The order granted plaintiff's motion for summary judgment.

Order reversed without costs and plaintiff's motion for summary judgment denied.

Plaintiff commenced this action to recover first-party no-fault benefits for health care services rendered to its assignor. Thereafter, it moved for summary judgment on the ground that defendant failed to pay or deny its claims within 30 days of their receipt (Insurance Law § 5106; 11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]). In its opposition papers, defendant stated that it sent plaintiff timely requests for verification which tolled the 30-day period within which it was obligated to pay or deny the claims. After receiving the requested verification, defendant paid a portion of plaintiff's bills and timely denied the remaining balance based on the ground that the fees charged by plaintiff for the services rendered were in excess of the Workers' Compensation fee schedule. The lower court granted plaintiff's motion for summary judgment on the ground that defendant failed to establish that it timely mailed the requests for further verification and, thus, the 30-day statutory time period within which it was required to pay or deny each claim was not tolled.

We disagree with the lower court's finding that defendant failed to establish the timely mailing of its verification requests. In an affidavit annexed to defendant's opposition papers, defendant's claims examiner stated that "[i]t is [defendant's] business practice to mail all verification requests to the address the applicant lists on the bill on the same day the verification request is generated. In compliance with that policy on the day [that] each verification request was generated: 2/25/02, 4/01/02 and 3/19/02, the verification request was mailed to [plaintiff]." In addition, unlike the affidavit of defendant's claims examiner in the case of Contemp. Med. [*2]Diag. & Treatment, P.C. v Government Empls. Ins. Co. (6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]), defendant's claims examiner further stated that he had "personal knowledge of [defendant's] office practices and policies and [is] responsible for ensuring that they are enforced." Defendant's opposition papers thereby sufficiently established the timely mailing of the verification requests since the affidavit of defendant's claims examiner was from one with personal knowledge of the standard office practice 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]). In view of the tolling of the 30-day period within which defendant was required to pay or deny the claims, defendant's denials of claims were not untimely. Accordingly, plaintiff's motion for summary judgment is denied.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: June 23, 2006