In this action for no-fault benefits, plaintiff moves for summary judgment on its claim, and defendant cross-moves for summary judgment dismissing the claim.

Plaintiff's claim involves medical services rendered to its assignor, John Roe, between October 1, 2013 and October 10, 2013. Plaintiff's bill, dated October 23, 2013, was received by defendant on October 31, 2013. On November 5, 2013, defendant requested "final verification" of the claim. One week later, on November 12, 2013, defendant admittedly received plaintiff's response to the "final verification" request.

Defendant neither paid nor denied the claim within 30 days of the date of receipt of "final verification." Instead, it belatedly issued a denial of the claim on December 30, 2013. The reason for the denial was set forth as follows:

BASED ON THE PEER REVIEW CONDUCTED BY DR SUSAN CORCORAN ON 11/26/13 A PORTION OF THE SERVICES AT ISSUE ARE NOT CAUSALLY RELATED TO THE MOTOR VEHICLE ACCIDENT.

PER THE REPORT ONLY LINE ITEMS 9- DX X-RAY, 10- DX X-RAY / CHEST, 11- CT SCAN / HEAD, 12 CT SCAN BODY, 17- EMERG ROOM AND LINE 24- VACCINE ADMIN ARE RELATED TO THE ACCIDENTOF 10/1/2013. PLEASE REBILL TRAVELERS FOR ONLY THOSE LINE ITEMS. IF YOU HAVE ADDITIONAL INFORMATION YOU WISH TO SUBMIT WE WILL RECONSIDER OUR POSITION.

Plaintiff's summary judgment motion argues, inter alia, that the denial was untimely and "defective" as a matter of law. Although defendant's peer review report asserts that "a portion of the services" were not causally related to the accident, plaintiff contends that "hybrid cases" are still subject to the usual 30 day time limit for paying or denying no-fault claims.

Defendant, in turn, maintains in its cross-motion that it properly "denied the claim in full based on a lack of medical necessity and the services at issue are not casually related to the motor vehicle accident at issue." Since Dr. Corcoran's report concluded that a portion of the claim was not causally related to the motor vehicle accident, defendant argues that it was not required to pay or deny the claim within 30 days. Counsel further avers that the affirmed report proffered by the defendant establishes a lack of medical necessity for the subject services, thereby entitling the defendant to summary judgment.

The Court's resolution of the parties' contentions requires close examination of caselaw decisions by higher courts. Under the no-fault regulations, an insurer is ordinarily required to pay or deny a no-fault claim within 30 calendar days after the insurer "receives proof of claim, which shall include verification of all relevant information requested" (11 NYCRR 65-3.8[a][1]; see Insurance Law § 5106[a]; Presbyterian Hospital in the City of New York v Maryland Casualty Company, 90 NY2d 274, 278 [1997]). However, in Central General Hospital v Chubb Group of Insurance Companies, 90 NY2d 195 (1997), the Court of Appeals recognized a limited exception to this general rule. The Court of Appeals was "persuaded" that an insurer may "assert a [*2]lack of coverage defense" at any time if it has a "founded belief that the alleged injury does not arise out of an insured incident" (Chubb, 90 NY2d at 199). As explained in subsequent cases, "an insurer who fails to issue a timely disclaimer" is not prohibited from later raising a "lack of coverage defense" if "the insurance policy does not contemplate coverage in the first instance" (Hospital for Joint Diseases v Travelers Property Casualty Insurance Company, 9 NY3d 312, 318 [2007] [citation omitted]). To hold otherwise would "create coverage where it never existed" (id.).

In the case at bar, this Court must determine whether defendant's defense to the instant claim should be precluded under Presbyterian, or allowed under Chubb. In Mount Sinai Hospital v Triboro Coach Incorporated, 263 AD2d 11, 18-19 (2d Dept 1999), the Court concluded that the limited exception recognized in Chubb "applies only where the medical conditions for which the patient was treated was not related to the accident at all.'" Conversely, in "hybrid" cases, where the claimant's injuries were "in whole or in part the result of an insured accident" the injuries are presumptively "covered" by no-fault (Mount Sinai at 19).

The Court in Mount Sinai went on to find that the insurer failed to demonstrate its entitlement to Chubb's "exceptional exemption" absent an expert's affidavit establishing a basis for the insurer's "founded belief" that the claimant's injuries did "not arise out of an insured incident" (Mount Sinai at 19-20). In the instant case, in contrast, defendant's peer doctor sets forth a factual basis for questioning whether all the treatments provided were causally related. To that extent, the instant case presents a more difficult issue.

Nevertheless, defendant's proof fails to meet the basic test for invoking the Chubb exemption, namely, expert evidence establishing that plaintiff's treatments were not "related to the accident at all." Although the Court's ruling in Chubb "did not elaborate upon what kinds of medical conditions can trigger the exemption from preclusion" (Mount Sinai at 18), this Court agrees with plaintiff's contention that the exemption does not apply in "hybrid" cases otherwise covered by no-fault (see Mount Sinai at 19).

Based upon the foregoing, this Court holds that once no-fault coverage has been triggered by the motor vehicle accident, a no-fault insurer must timely pay or deny the claim within the applicable 30 day rule, and that this holds true even in cases where a part of the claim involves services not causally related to the accident. If the insurer fails to do so, it will be precluded from raising a general lack of medical necessity defense to the entire claim, and will also be precluded from raising a Chubb coverage defense to that part of the claim as may not be casually related to the accident.

Unlike the circumstances presented in Chubb, no-fault coverage was unquestionably triggered when plaintiff's assignor, Roe, received medical attention for injuries which arose from a covered motor vehicle accident. Indeed, defendant's peer review doctor, Susan Corcoran, acknowledged that a significant portion of plaintiff's claim was casually related to the accident. Instead of paying plaintiff for such services, however, defendant issued a late denial which improperly directed plaintiff to rebill [*3]defendant for that causally related portion of the claim.

Furthermore, as to that portion of the claim that defendant alleges was not causally related, Mount Sinai makes plain that "hybrid" cases fall outside of Chubb's "lack of coverage" rationale, and the Court sees no basis for concluding otherwise. At least in cases, like this one, where plaintiff provided treatments to its assignor after a motor vehicle accident for both causally related injuries, and conditions that allegedly were not causally related, defendant has no excuse for failing to pay or deny the claim within 30 days of its receipt of final verification. Defendant could have issued a timely denial which raised a lack of causation defense to part of the subject claim. For reasons not explained, it did not do so.

In the final analysis, defendant's argument is unconvincing. While Chubb allows an insurer to avoid the 30 day time limit in narrowly circumscribed circumstances, the exception applies only in "bright line" cases, not to "hybrid" cases like this one.

As such, the plaintiff has demonstrated its prima facie entitlement to judgment as a matter of law by tendering proof that the claim was neither paid nor denied within the requisite 30 days of the date it received the additional verification it requested (see Insurance Law § 5106; Viviane Etienne Med Care, P.C. v Country-Wide Insurance Company, 114 AD3d 33 [2d Dept 2013]). The defendant having failed to timely deny the claim, is now precluded from raising both a general lack of medical necessity defense, and the defense that part of the charges were not causally related.Accordingly, plaintiff's motion for summary judgment is granted, and defendant's cross motion is denied.

Submit judgment on notice.

District Court Judge