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Triangle R Inc. v. Praetorian Ins. Co.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 3, 2010

TRIANGLE R INC.
v.
PRAETORIAN INS. CO.

Per curiam.

Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2010

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint.

Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant's motion for summary judgment granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Plaintiff-provider commenced this action to recover assigned first-party no-fault benefits for medical supplies provided to its assignor. Defendant-insurer moved for summary judgment dismissing the complaint as premature on the ground that plaintiff failed to comply with defendant's verification requests. In support of that motion, defendant submitted the affidavit of its claims examiner, in which he stated that (1) defendant received plaintiff's claim on August 13, 2007; (2) defendant mailed verification requests on August 14, 2007, and follow-up requests on August 28, 2007 and September 28, 2007; and (3) plaintiff failed to respond to any of these requests. Civil Court denied the motion on the ground that the verification requests were issued "less than thirty (30) days apart in contravention of the regulations, thereby rendering them improper." We reverse. It is well settled that the 30-day period within which an insurer must pay or deny the claim is tolled until it receives the relevant verification requested (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Plaintiff does not dispute that defendant mailed the verification requests, as well as the follow-up requests, and that plaintiff failed to respond. Although defendant's September 28, 2007 follow-up request, issued 15 days after the expiration of the 30-day period within which plaintiff was required to respond to the initial August 14, 2007 verification request, did not strictly comply with the time limitation prescribed by the regulation (see 11 NYCRR 65-3.6[b]), this does not, under the circumstances presented here, deprive defendant of the benefit of the tolling of the 30-day period (see Infinity Health Prod., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2009]; see also Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Moreover, defendant's "improper" follow-up request of August 28, 2007 (cf. Infinity Health Prod., Ltd., supra), does not vitiate the validity of the September 28, 2007 follow-up request. "[I]t would be incongruous to conclude that the insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer's requests" (id. at 865). Accordingly, since plaintiff did not respond to defendant's verification requests, its action is premature, and defendant's motion for summary judgment dismissing the complaint as premature should have been granted. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: December 03, 2010

20101203

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