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Parsons Medical Supply, Inc. As Assignee of Jerd-Mayer Oriental v. Progressive Northeastern Ins. Co

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


August 23, 2012

PARSONS MEDICAL SUPPLY, INC. AS ASSIGNEE OF JERD-MAYER ORIENTAL,
APPELLANT, --
v.
PROGRESSIVE NORTHEASTERN INS. CO.,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 16, 2010.

Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co.

Decided on August 23, 2012

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered October 4, 2010 dismissing the complaint (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, without costs, so much of the order entered July 16, 2010 as granted defendant's cross motion for summary judgment dismissing the complaint is vacated and defendant's cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5512 [a]).

Defendant admits that it received plaintiff's claims for the sums of $865 and $1,737 on January 28, 2008 and February 6, 2008, respectively, and it is undisputed that the claims were not paid or denied within 30 days of their receipt. The letters sent by defendant to plaintiff after the receipt of the claims informed plaintiff that defendant was investigating the claims and was in the process of obtaining verification, which included examinations under oath. It is well settled that an insurer's delay letters, which request no verification, are insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant failed to demonstrate that the claims had been timely denied and, therefore, defendant has not established that its defense of lack of medical necessity is not precluded (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274 [1997]). Accordingly, the judgment is reversed, so much of the order as granted defendant's cross motion for summary judgment dismissing the complaint is vacated and defendant's cross motion is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.

Decision Date: August 23, 2012

20120823

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