West Tremont Med. Diagnostics P.C. v Travelers Indem. Co.

[*1] West Tremont Med. Diagnostics P.C. v Travelers Indem. Co. 2005 NY Slip Op 51909(U) [10 Misc 3d 1052(A)] Decided on November 22, 2005 Nassau District Court Pardes, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 22, 2005
Nassau District Court

West Tremont Medical Diagnostics P.C., a/a/o Winston Reyes, Plaintiff,

against

Travelers Indemnity Company, Defendant.



3094/04

Sondra K. Pardes, J.

The plaintiff moves, pursuant to CPLR 3212, for an order granting summary judgment. This motion was served on July 13, 2005 and the original return date of the motion was August 19, 2005. The court file reflects that counsel for defendant appeared on that date and requested additional time to submit opposing papers. The file further indicates that the defendant was directed to serve its opposing papers no later than September 14, 2005, and the case was calendered for October 14, 2005 for plaintiff's Reply and "Final" submission.

The defendant failed to serve its opposition papers by September 14, 2005. On October 14, 2005, the defendant served the plaintiff, in court, with papers entititled "Cross Motion and Affirmation in Opposition". (The defendant failed to serve a Notice of Cross Motion). Based on its untimely submission and lack of notice, the court declined to consider the defendant's " cross motion". However, the court did consider the defendant's opposition to the plaintiff's motion and the plaintiff's reply.

This is an action to recover No-Fault insurance benefits. The plaintiff submitted proof that it submitted a claim for bills totaling $1754.17 on January 21, 2002. The defendant issued a denial on July 15, 2002 citing "failure to cooperate with our

INDEX NO. 3094/04 [*2]

investigation" as the basis for its denial. The plaintiff commenced this action on June 7, 2004.

The plaintiff now moves for summary judgment on the grounds that the denial of claim is "fatally defective" in that a substantial portion of the denial form was "BLANK". The defendant failed to provide the information requested in boxes numbered 23 and 25 through 32, including ,inter alia, the name of the provider, the date of the bill, the date the defendant received the bill, or the amount in dispute.

A denial of claim that fails to include a number of basic items called for in the prescribed form is "fatally defective" and cannot be corrected nunc pro tunc. (see, Nyack Hospital v State Farm Mutual Automobile Insurance Co., 2004 WL 2394038 [1st Dept, 2004]).

New York's No-Fault insurance law is in derogation of the common law and must be strictly construed (see, Presbyterian Hospital in the City of New York v Atlanta Casualty Co., 210 AD2d 210, 211 [2nd Dept, 1994]). The statute requires an insurer to pay or deny the claim, in whole or part, 30 days of receipt of proof of claim (11 NYCRR §65.15[f][3]). However, the statute provides for an extension of the insurer's time to pay or deny the claim if it serves a demand for "additional verification" (11 NYCRR §65.15[d]). The 30 day period which the insurer has to either pay or deny the claim does not begin to run until all the information demanded is provided ( See New York & Presbyterian Hosp., v. Progressive Cas. Ins. Co., 5 AD3d 568 [2nd Dept.,2004]];11 NYCRR §65.15 [g][1][I]). In fact, with exceptions not herein relevant, the statute specifically provides that " an insurer shall not issue a denial of claim prior to its receipt of verification requested pursuant to section 65-3.5.... "( emphasis added)

In the instant case the plaintiff submitted proof that it received and responded to requests for additional verification. The defendant acknowledged receipt of some of the responses to its requests for verification on 3/28/02..

The defendant asserts, in opposition to the plaintiff's motion, that the plaintiff's responses to its demand for additional verification are incomplete; that it need not issue a denial and that this " lawsuit is premature." However, notwithstanding the defendant's assertion that it was not required to issue a denial, the defendant did in fact issue a Denial of Claim on July 15, 2002. The plaintiff asserts that this denial is "fatally defective".

The court find that the denial was clearly defective in that the defendant failed to provide a significant amount of the information required on the prescribed form. Based on the defects in the defendant's denial, the defendant is therefore precluded from offering



[*3]INDEX NO. 3094/04

evidence in opposition to the plaintiff's claim. (see, Nyack Hospital v State Farm, supra).

The No-Fault statute provides that " 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 the relevant information requested ...."( 11 NYCRR 65-3.8 [a] [1]). In the instant case the defendant acknowledged that it received responses to it demands for additional verification on 3/28/03 and the defendant issued a denial of claim several months later. Inasmuch as the statute provides that an insurer need not, and in fact shall not, issue a denial of claim until it receives all of the verification requested,( 11NYCRR 65-3.8{b][3]), the court find that 3/28/02 is the date that the defendant received proof of claim. Therefore, the denial dated July 15, 2002 was untimely. Interest accrues on overdue claims pursuant to 11NYCRR 65-3.9.

Accordingly, based on the above, the plaintiff's motion for summary judgment is granted.

Let judgment enter in favor of the plaintiff and against the defendant in the sum of $1754.17, plus statutory attorney fees, plus statutory interest from June 7, 2004, plus costs and disbursements of this action

So ordered:

DISTRICT COURT JUDGE

Dated:November 22, 2005

CC:Israel, Israel & Purdy, LLP

Karen C. Dodson, Esq.

SKP: rad