MSSA Corp. v Praetorian Ins. Co.

[*1] MSSA Corp. v Praetorian Ins. Co. 2012 NY Slip Op 50413(U) Decided on March 6, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
2010-1800 K C.

MSSA Corp. as Assignee of ANGEL CURET, Respondent,

against

Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered January 26, 2010. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant's motion for summary judgment dismissing the complaint was properly denied, as defendant failed to demonstrate that the claim had been timely denied. Defendant's denial of claim form was not issued within 30 days of receipt of plaintiff's claim form, and the affidavit of defendant's claims examiner failed to demonstrate that defendant had tolled its time to pay or deny the claim by timely mailing its request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [a] [1]) in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As a result, defendant failed to demonstrate that its defense of lack of medical necessity was not precluded (see e.g. Delta Diagnostic Radiology, P.C. v [*2]Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order of the Civil Court denying defendant's motion for summary judgment dismissing the complaint is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012