Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 50258(U)(App. Term 2d Dept. 2013)
This was seen once before in a Praetorian case last year. This case actually spells out the timing procedures regarding when verification is received and when a denial may be issued and deemed timely. What does not make sense is that in the grand scheme of things, there was no purpose in waiting for the written verification since the bill was going to be denied based upon the IME default after the second no-show. Yet, how do you get around the requirement in the regulation that a bill should not be denied while verification is pending? Appears to be a compromise holding – but it at least sets forth a hard and fast rule that the industry can appreciate.
“as to the second and third causes of action, the court found that defendant’s denials were untimely because they had been mailed more than 45 days after plaintiff’s assignor had violated a policy condition by failing to appear for the second scheduled IME. On appeal, defendant argues that the branches of its motion seeking summary judgment dismissing the second and third causes of action should have been granted.”
“Defendant demonstrated that it had timely mailed both initial and follow-up IME requests and initial and follow-up requests for written verification (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]), thereby tolling its time to pay or deny the claims at issue. While plaintiff’s assignor failed to appear for IMEs on January 16, 2009 and February 2, 2009, defendant did not receive the requested written verification until February 19, 2009. As defendant denied the claims within 30 days of its receipt of the requested written verification (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), the claims at issue were timely denied on the ground that plaintiff’s assignor had failed to appear for properly scheduled IMEs, regardless of the fact that the last nonappearance had occurred more than 45 days prior to the issuance of the denial”