March 4, 2004

Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co. (2004 NY Slip Op 51041(U))

Headnote

In the case of Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co., the plaintiff was seeking to recover $2,670.40 in first-party no-fault benefits for health services provided to its assignor. The plaintiff moved for summary judgment on the grounds that the defendant's denial of its claim was not made within the statutory 30-day period as required by Insurance Law § 5106. The court below denied the motion, but the appellate court reversed the decision, granting summary judgment to the plaintiff for the principal sum of $2,670.40, and remanded the matter to the court below for the calculation of statutory interest and an assessment of attorney's fees. The court determined that the defendant's request to examine the assignor under oath did not toll the statutory period, and that the letters sent by the defendant did not constitute a proper request for verification, therefore, the defendant was precluded from raising defenses and the plaintiff was entitled to summary judgment.

Reported in New York Official Reports at Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co. (2004 NY Slip Op 51041(U))

Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co. (2004 NY Slip Op 51041(U)) [*1]

Ocean Diagnostic Imaging P.C. v Nationwide Mut. Ins. Co.

2004 NY Slip Op 51041(U)

Decided on March 4, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:ARONIN, J.P., PATTERSON and RIOS, JJ.
NO. 2003-296 K C

OCEAN DIAGNOSTIC IMAGING P.C. a/a/o DENNIS CAIDOR, Appellant,
against
NATIONWIDE MUTUAL INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County

(P. Sweeney, J.), entered December 16, 2002, denying its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted for the principal sum of $2,670.40 and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In or about September 2001, plaintiff commenced this action to recover $2,670.40 in first-party no-fault benefits for health services it provided to its assignor
pursuant to Insurance Law § 5101 et seq., as well as statutory interest and attorney’s fees. Thereafter, plaintiff moved for summary judgment on the ground that, inter alia, defendant’s denial of its claim was not made within the statutory 30-day period as required by Insurance Law § 5106. By order entered December 16, 2002, the court below denied the motion.

A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by showing that it submitted a complete proof of claim to defendant which defendant did not pay or deny within the statutory 30-day period (see Insurance Law § 5106 [a]; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Defendant’s request to examine the assignor under oath did not toll the statutory period inasmuch as, at the applicable time, there was no provision in the no-fault regulations for such verification (A.B. Med. Serv. PLLC v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; see Bronx Med. Serv. P.C. v Lumbermans Mut. Cas. Co., NYLJ, June 13, 2003 [App Term, 1st Dept]; cf. 11 NYCRR
65-3.5 [e]). Moreover, the October 19, 2001 and November 19, 2001 letters defendant allegedly sent to plaintiff did not constitute a proper request for verification, and follow-up letter, and did not toll the statutory period, since the letters failed to indicate to whom the requests were made or what was specifically requested . The [*2]
letters merely state that an investigation was being conducted (see e.g. Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999 [App Term, 9th & 10th Jud Dists] [a letter stating that a peer review was to be conducted did not amount to a request for verification]; see also 11 NYCRR 65.15 [e] [2]). Having failed to timely pay or deny, defendant is precluded from raising defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).
Accordingly, plaintiff’s motion for summary judgment for the principal sum of $2,670.40 is granted and the matter remanded for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Decision Date: March 04, 2004