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D & R Medical Supply v. Progressive Insurance Co.

March 31, 2009

D & R MEDICAL SUPPLY AAO FENELON DANIEL, PLAINTIFF,
v.
PROGRESSIVE INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Peter P. Sweeney, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Upon the foregoing papers, the motion and cross-motion are decided as follows:

In this action to recover assigned first-party no-fault benefits, both plaintiff and defendant moved for summary judgment. In opposition to plaintiff's motion and in support of its cross-motion, defendant argued, inter alia, that the action is premature and should be dismissed because plaintiff did not provide the medical reports which it had requested as additional verification of the claims. The novel question presented is whether plaintiff, in response to defendant's requests for additional verification of the claims, was obligated to do more than just inform defendant that it was not in possession of the medical reports that had been requested.

Factual Background

The facts are essentially undisputed. Plaintiff D & R Medical Supply is a provider of medical equipment. Plaintiff submitted admissible proof in support of its motion for summary judgment demonstrating that it had submitted to the defendant two claims for assigned first-party no-fault benefits for medical equipment that it had provided to its assignor. The claims were submitted on July 9, 2007 and July 25, 2007.

By letter dated July 23, 2007, defendant acknowledged receipt of the first claim. In the letter defendant stated as follows: "[a] report from the referring physician is required with comment regarding the medical necessity of the medical equipment."

Plaintiff responded to defendant's letter by its own letter, dated July 26, 2007, stating:

"We are in receipt of your letter dated July 23rd, 2007.

Unfortunately D & R Medical Supply, Inc. is unable to provide you with referring physician report and/or any medical records that you are requesting for the above named patient. This type of documentation is not in our possession. We are medical supply company and provide supplies in accordance to the doctor's prescription. Please request it directly from the medical provider.

Defendant mailed a second copy of its July 23, 2007 letter to the plaintiff on August 24, 2007.

By letter dated August 11, 2007, defendant acknowledged receipt of the second claim and again stated that "[a] report from the referring physician is required with comment regarding the medical necessity of he medical equipment." Plaintiff again informed defendant that it did not have such a report in its possession. On September 13, 2007, defendant mailed a second copy of its August 11, 2007 letter to the plaintiff.

To date, plaintiff has not provided the defendant with a report from any physician attesting to the medical necessity of the equipment at issue; for its part, defendant neither paid nor denied the claims at issue.

On its motion for summary judgment, plaintiff's position is that it submitted its bills to the defendant who neither paid nor denied the claims pursuant to the No Fault Law and regulations. In defense, and on its own cross-motion, it is defendant's position that the action on these claims is premature and must be dismissed. According to the defendant, the 30 day period within which it had to pay or deny the claims had not begun to run, inasmuch as plaintiff has yet to provide defendant ...


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