Omega Diagnostic Imaging, P.C. v. Mvaic

Full title: OMEGA DIAGNOSTIC IMAGING, P.C. a/a/o PATRICIA WORGS, Plaintiff-Respondent…

Court: Appellate Term of the Supreme Court of New York, First Department

Date published: Jul 6, 2011

2011 N.Y. Slip Op. 51259 (N.Y. App. Term 2011)

Opinion

570558/09.

Decided July 6, 2011.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 16, 2008, which denied its motion for summary judgment.

PRESENT: Shulman, Hunter, Jr., JJ.

PER CURIAM.

Order (Raul Cruz, J.), entered October 16, 2008, affirmed, with $10 costs.

Following a motor vehicle accident in 2004, plaintiff provided medical services to its assignor. On November 30, 2004, plaintiff submitted its bills to defendant for payment of assigned first-party no-fault benefits. Within days of receipt, on December 8, 2004, defendant sent plaintiff a timely verification request regarding the medical bills, but did not satisfy the follow-up verification provisions of 11 NYCRR 65-3.6(b). More than one year later, on January 18, 2006, plaintiff responded to the verification request and, on February 1, 2006, defendant issued a denial of plaintiff's claim.

In April 2008, plaintiff commenced the instant action against defendant to recover the unpaid first-party no-fault benefits. Defendant moved for summary judgment dismissing the complaint on the ground that the action was time-barred under the applicable three-year statute of limitations, arguing that the accrual date of plaintiff's claim, i.e. the date payment became "overdue," was 30 days after defendant's initial receipt of plaintiff's claim in 2004. In effect, defendant posited that its timely verification request was invalid, and hence, ineffective to extend the accrual date of the claim due to its own failure to comply with the follow-up provision.

Civil Court properly denied defendant's motion for summary judgment dismissing plaintiff's claim as time-barred ( see CPLR 214; Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. Sur. Co., 89 NY2d 214, 221). Defendant's timely verification request "tolled the defendant's time within which to pay or deny the claim," until its receipt of all the requested information ( New York Presbyt. Hosp. v Countrywide Ins. Co. , 44 AD3d 729 , 730; see 11 NYCRR 65-3.8[a][1]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d 312, 317; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. , 44 AD3d 903 , 904). Indeed, an insurer "shall" not issue a denial of claim "prior to its receipt of verification of all the relevant information requested pursuant to" its verification forms ( 11 NYCRR 65-3.8[b][3]; see Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d at 904; Hospital for Joint Diseases v ELRAC, Inc. , 11 AD3d 432 , 434).

We therefore find, on this record, that plaintiff's claim accrued for statute of limitations purposes on the date that defendant issued its denial, following its receipt of plaintiff's response to the verification requested. Defendant may not be permitted to rely on its own failure to comply with the follow-up provisions of the no-fault regulations ( see 11 NYCRR 65-3.6[b]), to invoke the statute of limitations as a defense.

To the extent that Acupuncture Works, P.C. v MVAIC ( 27 Misc 3d 131 [A], 2010 NY Slip Op 50646[U] [App Term 2d 2010]) may be read as contrary to this conclusion, we decline to follow it under the extant circumstances.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.