Right Aid Med. Supply Corp. v Nationwide Ins. (2013 NY Slip Op 51746(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 13, 2011. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint, finding that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant’s denial of the claims was untimely.

The claim forms at issue were received by defendant on November 23, 2009 and November 24, 2009, respectively. It is undisputed that defendant did not deny the claims until January 12, 2010. Defendant demonstrated that, on November 19, 2009, prior to its receipt of the claim forms at issue, it had mailed a letter scheduling an EUO for December 4, 2009 to plaintiff’s assignor. (It is noted defendant has established that all mailings in this case were done in accordance with its 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)]). Consequently, a toll of defendant’s time to pay or deny the claims at issue went into effect at the time they were submitted (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Defendant further showed that it had mailed a second letter rescheduling the EUO for December 10, 2009 at plaintiff’s assignor’s request, and a follow-up letter within 10 days after plaintiff’s assignors had failed to appear on December 10, 2009, scheduling the EUO for January 8, 2010. However, defendant was also required, at the same time it mailed its final EUO scheduling letter, to inform plaintiff of the reasons why the claim was delayed “by identifying in writing the missing verification and the party from whom it was requested” (Insurance Department Regulations [*2][NYCRR] § 65-3.6 [b]). As argued by plaintiff on appeal, defendant’s December 11, 2009 letter to plaintiff failed to specifically identify the party from whom the EUO had been requested. Since defendant failed to demonstrate that it had complied with Insurance Department Regulations (NYCRR) § 65-3.6 (b), it lost the benefit of the toll. As a result, defendant failed to demonstrate that its denial of claim form had been timely mailed, and it was therefore not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 15, 2013