Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Order to show Cause/ Notice of Motion and Affidavits / Affirmations annexed 1 Answering Affidavits / Affirmations 2 Reply Affidavits / Affirmations 3 Memoranda of Law Other Decision / Order Upon the foregoing cited papers and oral argument, the Decision/Order on Defendant’s motion for Summary Judgment is granted for the following reason(s): Defendant moves for Summary Judgment by arguing that Plaintiff failed to comply with the verification requests made within 120 days. Defendant argues that the bill in question was timely and properly denied because of Plaintiff’s failure to comply with the information requested from Plaintiff in accordance with 11 NYCRR §65-3.5(c). Plaintiff opposes Defendant’s motion arguing that the time Defendant had to pay or deny the claim had elapsed. An insurer has 30 days from receipt of a completed application to pay or deny in whole or in part, a claim for No-Fault insurance benefits. 11 NYCRR §65-3.8. This period may be extended by a timely demand by the insurance company for further verification of a claim. 11 NYCRR §65-3.8(a)(1); New Millenium Med. Imaging, P.C. v. Geico, 76 Misc.3d 31, 33 (App. Term 2d. Dep’t 2022). 11 NYCRR §65-3.5(b) states that subsequent to the receipt of the verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms. 11 NYCRR §65-3.8(1) states that any deviation from the 15 days to request verification shall reduce the number of days to pay or deny the claim. Pursuant to 11 NYCRR §65-3.5(c), “the insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested”. 11 NYCRR §65-3.6(b) states that with regard to Verification Requests “At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call, properly documented in the file, or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested. A claim need not be paid or denied until all demanded verification is provided”. 11 NYCRR §65-3.8(b)(3). An applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply. 11 NYCRR §65-3.5(o). Here, Defendant received the bill in question on July 30, 2021. On August 12, 2021, an Examination Under Oath (hereinafter “EUO”) was conducted. On August 20, 2021, 8 days after the EUO, Defendant sent a verification request to Plaintiff requesting various items. After receiving an inadequate response from Plaintiff, on September 23, 2021, Defendant followed up with the same verification request. Ultimately, on December 30, 2021, Defendant issued a denial for the claim because Plaintiff had failed to respond adequately to the verification requests within 120 days of the initial request. Plaintiff argues that Defendant has not met its burden for Summary Judgment as Defendant denied the bill in excess of 30 days after receipt. At oral argument, Plaintiff argued that the holding of the Burke case, Burke Physical Therapy, P.C. As Assignee of Rush, Kanice vs. State Farm Mutual Automobile Ins. Co., 2024 NY Slip Op 24111 (Sup. Ct. App. Term 2d. Dep’t 2024) applies and renders the denial untimely. As noted earlier, the bill in question was received on July 30, 2021. Defendant had 30 calendar days from that date to either pay or deny the bill and 15 business days from that date to request verification. First, it should be noted that as for the EUO held on August 12, 2021, no information was provided by either side that states when the scheduling letter went out for this EUO to toll the 30 days to pay or deny the claim. Nevertheless, the scheduling letter is irrelevant in this particular case. Defendant had 15 business days from July 30, 2021 to request additional verification. Defendant requests additional verification on August 20, 2021, 16 business days from July 30, 2021. As per the regulations, this delay is not fatal, rather it subtracts 1 day from the 30 days to pay or deny the claim. Therefore, this reduced the 30 total days to 29 calendar days to pay or deny the claim. As there is no evidence of tolling by way of a scheduling letter for the EUO conducted on August 12, 2021, Defendant would have 8 days left to pay or deny the claim as 21 days elapsed from July 30, 2021 to August 20, 2021. The time to pay or deny is tolled from August 20, 2021 by way of the verification letter. Subsequently, on September 23, 2021, Defendant makes a follow up request. At that point, from August 20, 2021 to September 23, 2021, 30 days had passed without answer and Defendant had 10 days to follow up. Defendant followed up on the 3rd day of the allotted 10 days. On December 30, 2021, the claim was denied after Plaintiff failed to provide the requested verification within 120 days. Plaintiff argues that the time Defendant had to pay or deny the claim, 30 days, had elapsed because applying the holding in the Burke, Defendant’s time was not tolled from the post-EUO verification request. However, the Court finds that the facts of Burke are not analogous with the facts in the case at bar. The most substantial distinction, and one that is the cornerstone of the Burke decision, is that here, the first verification requested after the EUO was made in a timely manner, namely, within 30 days to pay or deny the claim and just outside the 15 business days to request verification, resulting in the loss of 1 day. Because that request was timely, the 30 day limit was tolled at the time of the verification, August 20, 2021. In Burke however, the post-EUO verification was not requested until well after the 15 business day limit had already elapsed. Thus, the 30 day time was not tolled. Considering the applicable regulations and tolling periods as explained above, the Court finds that the requested verifications and denial by Defendant were proper and timely. Accordingly, the Court grants Defendant’s motion for Summary Judgment and dismisses Plaintiff’s complaint. This constitutes the final Decision and Order of the Court. Dated: July 15, 2024
