Elmont Open MRI & Diagnostic Radiology, P.C. v. N.Y. Cent. Mut. Fire Ins. Co.

• Decision Date: 17 August 2012
• Citation: 2012 N.Y. Slip Op. 22242,954 N.Y.S.2d 736,37 Misc.3d 802
• Court: New York District Court
• Parties: ELMONT OPEN MRI & DIAGNOSTIC RADIOLOGY, P.C., dba All County Open MRI & Diagnostic Radiology, Assignee of Abdelghani Kinane, Plaintiff, v. NEW YORK CENTRAL MUTUAL FIRE Ins. Co., Defendant.

37 Misc.3d 802
954 N.Y.S.2d 736
2012 N.Y. Slip Op. 22242

ELMONT OPEN MRI & DIAGNOSTIC RADIOLOGY, P.C., dba All County Open MRI & Diagnostic Radiology, Assignee of Abdelghani Kinane, Plaintiff,
v.
NEW YORK CENTRAL MUTUAL FIRE Ins. Co., Defendant.

District Court, Nassau County, New York.
First District.

Aug. 17, 2012.

[954 N.Y.S.2d 737]

Friedman, Harfenist, Kraut & Perlstein LLP for plaintiff.

Gullo & Associates for defendant.

FRED J. HIRSH, J.

[37 Misc.3d 803]Defendant New York Central Mutual Fire Insurance Co. (“NYCMFIC”) moves for summary judgment dismissing this action to obtain payment of first party no-

[954 N.Y.S.2d 738]

fault on the grounds the action is premature because defendant's time to pay or deny the claim has not run because plaintiff Elmont Open MRI & Diagnostic Radiology, P.C. (“Elmont”) failed to respond to defendant's verification requests.

BACKGROUND

Abdelghani Kinane (“Kinane”) sustained injuries in a motor vehicle accident that occurred on June 8, 2008.

On August 27, 2008, plaintiff Elmont Open MRI & Diagnostic Radiology, P.C. (“Elmont”) performed a brain MRI on Kinane. Kinane assigned his no-fault benefits for this test to Elmont.

Elmont submitted the claim for payment to the defendant NYCMFIC. While the exact date NYCMFIC received the claim is not clear, the claim was received on or before September 23, 2008 because by letter dated September 23, 2008, NYCMFIC requested verification from Elmont, to wit: copies of the MRI films and invoicing for the MRI films in accordance with the WCB Radiology Fee Schedule Ground Rule 8.

NYCMFIC claims it never received a response to its September 23, 2008 verification request. NYCMFIC sent a follow up verification request to Elmont dated October 27, 2008. NYCMFIC's [37 Misc.3d 804]October 27, 2008 letter states it had not received a response to its September 23, 2008 request and requests Elmont provide the information previously requested.

NYCMFIC avers it never received the requested verification. NYCMFIC never paid or denied the claim.

On September 22, 2011, Elmont commenced this action seeking to obtain payment of what it alleged was overdue, unpaid first party no-fault benefits.

In opposition to NYCMFIC's motion, Elmont submits an affidavit from Brijkumar Yamraj (“Yamraj”). Yamraj is Elmont's billing collection supervisor and is responsible for the day-to-day operation of Elmont's billing department. Yamraj responsibilities include to responding and complying with verification requests received in connection with no-fault claims.

Yamraj acknowledges Elmont received NYCMFIC's verification requests. Yamraj avers on November 12, 2008 he mailed a copy of the brain MRI films and other requested information to NYCMFIC from the Meacham Branch of the Elmont Post Office. The mailing is confirmed by a certificate of mailing issued by the Meacham Branch of the Elmont Post Office on November 12, 2008.

DISCUSSION

A no-fault insurer must pay or deny a claim for no-fault benefits within 30 days of receipt of the claim. 11 NYCRR 65–3.8(a). An insurer that fails to pay or deny a claim within 30 days is precluded from asserting any precludable defenses not asserted in a timely denial. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 N.Y.3d 556, 860 N.Y.S.2d 471, 890 N.E.2d 233 (2008); and Hospital for Joint Diseases v. Travelers Property Casualty Ins. Co., 9 N.Y.3d 312, 849 N.Y.S.2d 473, 879 N.E.2d 1291 (2007); and Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274, 660 N.Y.S.2d 536, 683 N.E.2d 1,rearg. denied90 N.Y.2d 937, 664 N.Y.S.2d 275, 686 N.E.2d 1370 (1997).¹

[954 N.Y.S.2d 739]

An insurer may toll or extend its time to pay a claim by timely demanding verification. Kingsbrook Jewish Medical Center v. Allstate Ins. Co., 61 A.D.3d 13, 871 N.Y.S.2d 680 (2nd Dept.2009); and Hospital for Joint Disease v. New York Central Mutual Fire Ins. Co., 44 A.D.3d 903, 844 N.Y.S.2d 371 (2nd Dept.2007); 11 NYCRR 65–3.5(c); and 11 NYCRR 65–3.8(a)(1). An insurer does not have to pay or deny a claim until it has received all timely requested verification. Nyack Hospital v. General Motors Acceptance Corp., 8 N.Y.3d 294, 832 N.Y.S.2d 880, 864 N.E.2d 1279 (2007); and [37 Misc.3d 805]New York and Presbyterian Hosp. v. Countrywide Ins. Co., 44 A.D.3d 729, 843 N.Y.S.2d 662 (2nd Dept.2007). As long as the verification is requested before the insurer's time to pay or deny the claim has expired, the insurer's time to pay or deny the claim is tolled or extended. Id.

An initial verification request must be made with ten business days of receipt of the claim. 11 NYCRR 65–3.5(a). Additional verification must be requested within fifteen business days of receipt of the initial verification material. 11 NYCRR 65–3.5(b).

If the provider does not respond to the initial verification request within thirty calendar days of the request, the insurer shall follow up within ten calendar days by advising the party from whom the verification was requested that processing of the claim is being delayed by the failure of the party to provide verification. 11 NYCRR 65–3.6(b).

NYCMFIC asserts that since it timely requested verification and since Elmont has not responded, its time to pay or deny the claim has not yet begun to run. As a result, Elmont's action is premature. The action must be dismissed.

Elmont submits the Yamraj affidavit in opposition to the motion in which Yamraj avers to having received the requested verification and having mailed the requested verification to NYCMFIC on November 12, 2012.

Because so many issues in actions to recover first party no-fault benefits are related to mailing and the timeliness of mailing, a rather significant body of case law has developed relating to mailing issues and what...