Opinion
Index No. CV-23661-15/KI Motion Cal. 48-49 Motion Seq. 1+2
10-03-2024
BLAND MEDICAL, P.C. A/A/O CHRISTOPHER NWANJI, Plaintiff, v. HEREFORD INSURANCE CO. Defendant.
Unpublished Opinion
6/21/24
DECISION AND ORDER
Javier Ortiz, Judge.
Recitation, as required by CPLR § 2219(a), of the papers considered in review of these Motions:
Papers
P's SJ Mtn & Supporting Docs...............2
D's SJ Cross-Motion & Supporting Docs..6-7, 11-16
P's Opp & Reply.................................4
Upon the foregoing cited papers, the Decision/Order on Plaintiffs motion for summary judgment and Defendant's cross-motion for summary judgment is as follows:
Both motions are DENIED. Issues of fact remain to be resolved.
Pursuant to Insurance Law § 5106[a] and the Insurance regulations, an insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant's proof of claim is received. (See Insurance Law § 5106[a]; 1 1 NYCRR § 65-3.8[c]). An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim. (See Infinity Health Prods., Ltd. v. Eveready Ins. Co., 67 A.D.3d 862, 864 [2d Dept 2009]; see also Keith v. Liberty Mid. Fire Ins. Co., 118 A.D.2d 151, 154 [2d Dept 1986] ("[T]he clock does not begin to run on the 30-calendar-day requirement until the insurer receives all of the necessary' verification . . . ."). A "request for verification [] toll[s] the 30-day period to pay or deny the claim until the records were received." (See Westchester Medical Center v. New York Central Mutual Fire Ins. Co., 30 Misc.3d 497 [Sup Ct Nassau Cty 2010], citing N.Y. &Presbyterian Hosp. v. Progressive ('as. Ins. Co., 5 A.D.3d 568, 570 [2d Dept 2004].)
According to Defendant's affiant Carl Periana. a no-fault supervisor. Plaintiffs bill was received by Defendant on January 21, 2015. and Defendant sent Plaintiff a verification request dated February 5, 2015. (See NYSCEF No. 14.) That verification request was timely pursuant to 11 NYCRR § 65.15(d)(1) as it was within ten business days of the date of receipt of the bill. However, Mr. Periana does not say whether Plaintiff provided any documents in response to Defendant's verification request. (See NYSCEF No. 14 ¶ 6.) Documents attached to the peer review report provided by Defendant indicate a "Final Verification Rec'd Date" of February 16. 2015 (see NYSCEF No. 16). but that is not confirmed by any affiant nor does the record indicate what, if any, verification was provided on or before February 16, 2015. The peer review report by Dr. Isandr Dumesh dated February 17, 2015 (id.) refers to various items considered, but it is not clear from the record whether these items were submitted as part of the verification request, and if so, when Defendant received them. It is necessary for the Court to know the timing here because Plaintiff argues that Defendant's denial was late. The Court cannot currently evaluate that argument without knowing the extent of tolling of the 30-day deadline pursuant to Defendant's verification request.
Plaintiffs arguments in opposition are directed at an affidavit allegedly provided by "Tony Singh, a NoFault Claims Supervisor." (See NYSCEF No. 4.) The Court cannot locate any such affidavit in the record before it.
Dr. Dumesh's report also mentions that he relies on a separate peer review performed on February 6. 2014. It is unclear if that is related to this case, as that date is before the accident at issue here.
Additionally, Plaintiff challenges the peer review finding of lack of medical necessity on both procedural and substantive grounds. On its face. Dr. Dumesh's peer review appears to suffer from some of the same defects observed in Elmont Open Mri A Diagnostic Radiology P. C. v. Progressive Cas. Ins. Co., 23 Misc.3d 1110(A) [Nassau Cty Dist Ct Apr. 6. 2009]. (See id. ("In determining whether a test is medically necessary, the question is whether the tests or procedures are in accordance with generally accepted medical practices, not whether the peer review doctor's personal opinion is the tests are not medically necessary. . . . The peer review doctor)] must establish a familiarity with generally accepted practice, must establish what generally accepted practice is under the circumstances and must state the questioned treatment was not in accordance with generally accepted medical practice. . . . The peer review report does not contain any information about [the peer reviewer's] education, training or professional experience.")).
Accordingly, there are issues of fact that remain unresolved. This constitutes the Decision and Order of the Court.