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Leica Supply, Inc. As Assignee of Jason Stuart v. Geico Indemnity Company

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


March 29, 2013

LEICA SUPPLY, INC. AS ASSIGNEE OF JASON STUART,
APPELLANT,
v.
GEICO INDEMNITY COMPANY,
RESPONDENT.

Leica Supply, Inc. v GEICO Indem. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 29, 2013

PRESENT: RIOS, J.P., WESTON and ALIOTTA, JJ

Appeal from a decision of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), dated October 15, 2010, deemed from a judgment of the same court entered February 16, 2011. The judgment, after a non-jury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $2,748.64, plus statutory interest and attorney's fees following the calculation and assessment thereof.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue raised on appeal is whether defendant's letters to plaintiff following defendant's receipt of plaintiff's claim forms constituted requests for verification so as to toll defendant's time to pay or deny plaintiff's claims. A review of defendant's letters reveals that they merely notified plaintiff that defendant was delaying payment, but they did not request any specific verification. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny plaintiff's claims (see 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]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant is precluded from raising its proffered defense of lack of medical necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $2,748.64, plus statutory interest and attorney's fees following the calculation and assessment thereof pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rios, J.P., Weston and Aliotta, JJ., concur. Decision Date: March 29, 2013

20130329

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