CHIROPRACTIC NEURODIAGNOSTICS v. TRAVELERS INDEMNITY CO (2006)

Plaintiff commenced the instant action to recover from defendant insurance company first party no-fault benefits for medical services it rendered to its assignor.   It moves for summary judgment on the ground that defendant failed to timely pay or deny plaintiff's claim for no-fault benefits.   Defendant argues that plaintiff is not entitled to summary judgment because it failed to submit a valid assignment of benefits form.   For the reasons stated below, plaintiff's motion for summary judgment is granted.

 Insurance Law 5106(a) and 11 NYCRR 65-3.8(c) provide that a no-fault insurer shall either pay or deny a claim for no-fault benefits within thirty days after receipt of the claim.   This thirty day period may be extended if within fifteen days from receipt of the initial verification forms an insurer demands additional verification of a claim.  (See 11 NYCRR 65-3.5 [b] ).  An insurer will be precluded from raising any noncoverage defenses to an action if it does not respond to a claim within thirty days.  (See Presbyterian Hospital in the City of New York v. Maryland Casualty Co., 90 N.Y.2d 274, 660 N.Y.S.2d 536, 683 N.E.2d 1 [1997];  Central General Hospital v. Chubb Group of Insurance Cos., 90 N.Y.2d 195, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997];  Zappone v. Home Insurance Co., 55 N.Y.2d 131, 447 N.Y.S.2d 911, 432 N.E.2d 783 [1982] ).

 In the instant case, defendant does not dispute that it did not deny or pay plaintiff's claim within thirty days after receiving the claim and that it did not make any demands for additional verification within fifteen days after receiving the claim.   It argues, however, that plaintiff has failed to make out a prima facie case because the assignment of benefits form submitted by plaintiff was defective in that it did not indicate an assignee and it did not include the date of the accident and the date that it was executed.   The First Department, Appellate Term recently addressed this issue in Laufer, MD v. Lumberman's Mut. Cas. Co., 9 Misc.3d 133(A), 2005 WL 2544294 [1st Dept., App. Term 2005].   The court found that it is not plaintiff's burden to establish that it submitted a valid assignment of benefits form but rather it is defendant's burden to establish that plaintiff failed to submit a valid assignment of benefits form.  (See id.).   The Appellate Term specifically held that the failure of defendant insurer “to object to the adequacy of plaintiff's no-fault claim form within 10 days of receipt constituted a waiver of any defenses based thereon, including any alleged technical deficiencies in the assignment of benefits.”  (Id.).  The Appellate Term in Laufer did not give any explanation in its decision of what would constitute a technical defect in an assignment of benefits form.   However, in reaching its decision, the court clearly relied on Nyack Hospital v. Metropolitan Prop. & Cas. Ins. Co., 16 A.D.3d 564, 791 N.Y.S.2d 658 [2nd Dept.2005], in which the Second Department held that the defendant's failure to object to the adequacy of plaintiff's claim forms within 10 days of receipt constituted a waiver of any defenses based on a lack of a valid assignment of benefits.  (Id.;  See also A.B. Medical Services PLLC v. Liberty Mutual Insurance Co., 10 Misc.3d 128(A), 2005 WL 3115295 [2nd Dept., 2 & 11th Jud. Dists. 2005];  A.B. Medical Services PLLC v. American Transit Ins. Co., 8 Misc.3d 139(A), 2005 WL 1981317 [App. Term., 2nd & 11th Jud. Dists. 2005] ).   Based on the Appellate Term's reliance on Nyack, which specifically held that “any” defense based on the assignment of benefits form was waived if not objected to within ten days of receipt, it appears that the Appellate Term intended for the lower courts to give a broad interpretation as to what constitutes a technical defect.

Based on the foregoing, the court find that defendant has waived any of the defects in the assignment of benefits form by not objecting to them within ten days as all of the defects were technical.   Plaintiff's motion for summary judgment is therefore granted.   The clerk is directed to enter judgment in the amount of $2,880.00 together with statutory interest plus statutory attorneys' fees plus costs and disbursements.   This constitutes the decision and order of the court.

CYNTHIA S. KERN, J.