June 8, 2006

Colonia Med., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51186(U))

Headnote

The court considered the fact that the plaintiff, Colonia Medical, P.C., was seeking to recover first-party no-fault benefits for medical services rendered to the assignor, Sherman Fraser. The main issue was whether the defendant, Travelers Insurance Company, had timely denied the plaintiff's claims based on the assignor's failure to attend independent medical examinations. The court held that the defendant failed to establish that it timely denied the plaintiff's claims, as it did not show that the statutory time period within which it had to pay or deny the claims was tolled by timely verification and follow-up requests. Therefore, the court reversed the order, granted the plaintiff's motion for summary judgment, and remanded the matter to the court below for the calculation of statutory interest and an assessment of attorney's fees.

Reported in New York Official Reports at Colonia Med., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51186(U))

Colonia Med., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51186(U)) [*1]

Colonia Med., P.C. v Travelers Ins. Co.

2006 NY Slip Op 51186(U) [12 Misc 3d 133(A)]

Decided on June 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-1339 N C.

Colonia Medical, P.C., a/a/o Sherman Fraser, Appellant,
against
Travelers Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Sharon Commissiong, J.), entered June 17, 2005. The order denied plaintiff’s motion for summary judgment and awarded defendant $50 in costs.

Order reversed without costs, plaintiff’s motion for summary judgment granted, and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff provider moved for summary judgment. The court below found that plaintiff demonstrated its entitlement to judgment as a matter of law but denied the motion on the ground that defendant raised triable issues of fact. The instant appeal by plaintiff ensued.

Upon a review of the record, we find that defendant failed to establish that it timely denied plaintiff’s claims based on the assignor’s failure to attend independent medical examinations, since it did not show that the statutory time period within which it had to pay or deny the claims was tolled by timely verification and follow-up requests. The affidavit by defendant’s claims representative did not demonstrate that defendant mailed verification requests. The affiant did not assert personal knowledge of actual mailing or of facts creating a presumption of same (see A.B. Med. Servs. PLLC v Prudential Prop & Cas Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504 [App Term, 2d & 11th Jud Dists]; Modern Psychiatric Servs. P.C. v Progressive Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50143[U] [App Term, 9th & 10th Jud Dists]). Since defendant’s denial was untimely, it is precluded from interposing the defenses raised in this case (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of [*2]attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: June 8, 2006