Opinion
No. 2013–240KC.
2014-07-28
LONGEVITY MEDICAL SUPPLY, INC. as Assignee of Lonny A. Vargas, Respondent, v. IDS PROPERTY & CASUALTY INSURANCE COMPANY, Appellant.
Present: WESTON, J.P., ALIOTTA and ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 12, 2012. The order denied 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 granted.
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 claims 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, arguing that defendant had failed to timely request EUOs and timely deny the claims, and that defendant did not demonstrate a good reason for requesting the verification. The Civil Court denied defendant's motion on the ground that defendant had not established that its procedure for mailing denial of claim forms had been followed. This appeal by defendant ensued.
The affidavit submitted by defendant's attorney in support of defendant's motion sufficiently described the standard practices and procedures of his office for mailing EUO scheduling letters ( 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] ). Furthermore, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff had failed to appear for either of the duly scheduled EUOs ( see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Olemur Med., P.C. v. Nationwide Gen. Ins. Co., 41 Misc.3d 143[A], 2013 N.Y. Slip Op 52031[U] [App Term, 2d, 11th & 13th Jud Dists 2013] ). Contrary to the determination of the Civil Court, the affidavit by defendant's litigation examiner established, based upon her personal knowledge, that defendant's procedures for mailing ( see St. Vincent's Hosp. of Richmond, 50 AD3d at 1124; Delta Diagnostic Radiology, P.C., 17 Misc.3d at 17–18) denial of claim forms had been followed.
To the extent that plaintiff argued that defendant's EUO scheduling letters had been untimely, a review of the record reveals that defendant received the claim form which sought reimbursement in the amount of $574.65 on April 4, 2011 and mailed its first EUO scheduling letter on May 3, 2011, 21 business days later. Requests for additional verification are untimely if not made within 15 business days of the insurer's receipt of the claim form ( see Insurance Department Regulations [11 NYCRR] § 65–3.5[b] ). Since the first EUO request was six days late, defendant's time to pay or deny this claim was reduced from 30 calendar days to 24 calendar days ( see Insurance Department Regulations [11 NYCRR] § 65–3.8[l] ). Defendant established that it had timely mailed a follow-up EUO scheduling letter, and that it had mailed its denial of claim form 11 days after plaintiff had failed to appear for the final scheduled EUO. With respect to the claim which sought reimbursement in the amount of $963.24, defendant demonstrated that it had received that claim on April 11, 2011 and had mailed the initial EUO scheduling letter on May 3, 2011, 16 business days later. Consequently, defendant's time to pay or deny this claim was reduced to 29 calendar days. Defendant established that it had timely mailed a follow-up EUO scheduling letter, and that it had mailed the denial of the $963.24 claim 11 days after plaintiff had failed to appear for the final scheduled EUO. Finally, defendant received the claim which sought reimbursement in the amount of $1,150 on May 19, 2011 and denied it on June 13, 2011. Consequently, each of defendant's denial of claim forms was timely mailed.
Furthermore, inasmuch as defendant demonstrated that plaintiff had failed to respond in any way to defendant's requests for EUOs, the reasonableness of these requests will not be considered ( see e .g. Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 A.D.2d 553 [1999]; Morris Med., P.C. v. Amex Assur. Co., 37 Misc.3d 140[A], 2012 N.Y. Slip Op 52260[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Eagle Surgical Supply, Inc. v. AIG Ins. Co., 36 Misc.3d 153[A], 2012 N.Y. Slip Op 51711[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; All Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 36 Misc.3d 135 [A], 2012 N.Y. Slip Op 51346[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Urban Radiology, P.C. v. Tri–State Consumer Ins. Co., 27 Misc.3d 140[A], 2010 N.Y. Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010] ).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.