Opinion
No. 2011–2104 Q C.
2013-03-29
LEICA SUPPLY, INC. as Assignee of Jason Stuart, Appellant, v. GEICO INDEMNITY COMPANY, Respondent.
Present: RIOS, J.P., WESTON and ALIOTTA, JJ.
Appeal from a decision of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), dated October 15, 2010, deemed from a judgment of the same court entered February 16, 2011. The judgment, after a nonjury trial, dismissed the complaint.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $2,748.64, plus statutory interest and attorney's fees following the calculation and assessment thereof.
In this action by a provider to recover assigned first-party no-fault benefits, the sole issue raised on appeal is whether defendant's letters to plaintiff following defendant's receipt of plaintiff's claim forms constituted requests for verification so as to toll defendant's time to pay or deny plaintiff's claims. A review of defendant's letters reveals that they merely notified plaintiff that defendant was delaying payment, but they did not request any specific verification. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny plaintiff's claims ( see Points of Health Acupuncture, P.C. v. Lancer Ins. Co., 28 Misc.3d 133[A], 2010 N.Y. Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010] ). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant is precluded from raising its proffered defense of lack of medical necessity ( see Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 282 [1997] ).
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $2,748.64, plus statutory interest and attorney's fees following the calculation and assessment thereof pursuant to Insurance Law § 5106(a) and the regulations promulgated thereunder.