|Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins.|
|2015 NY Slip Op 51220(U) [48 Misc 3d 139(A)]|
|Decided on August 5, 2015|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 6, 2012. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that the claim at issue had been timely and properly denied based upon plaintiff's failure to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. The Civil Court denied defendant's motion on the ground that defendant had not requested the EUOs in a timely manner, and granted plaintiff's cross motion for summary judgment.
Pursuant to the No-Fault Regulations, "any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the [NF-3]" (11 NYCRR 65-3.5 [b] [emphasis added]). Defendant did not request that plaintiff appear for an EUO until more than 15 business days, and even more than 30 calendar days (see generally 11 NYCRR 65-3.8 [l] [providing that deviations from the verification time frames reduce the 30 days to pay or deny the claim by the same number of days that the request was late]), after it had received the bills at issue. Thus, even if the EUO scheduling letters were timely with respect to any other pending claims which may exist but are not before us, thRey were untimely with respect to the bills at issue. Indeed, this would be true even if defendant had tolled the 30-day period within which it was required to pay or deny the bills at issue, by timely requesting verification pursuant to 11 NYCRR 65-3.8 (a), as the Regulations do not provide that such a toll grants an insurer additional opportunities to make requests for verification that would otherwise be untimely. Consequently, the EUO scheduling letters were nullities with respect to the bills at issue and, therefore, defendant's motion for summary judgment was properly denied (see O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d, 11th & 13th Jud Dists 2015]).
Contrary to defendant's argument, it did not demonstrate any toll of the 30-day period [*2]within which it was required to pay or deny the bills at issue. Since the record demonstrates that defendant received, but did not timely deny, these bills, plaintiff's cross motion for summary judgment was properly granted (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 ; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 05, 2015