AVALON RADIOLOGY v. GLOBAL LIBERTY INSURANCE (2020)

ORDERED that the order is reversed, with $30 costs, defendant's motion, pursuant to CPLR 4404 (b), to set aside the decision dated June 23, 2017, and, in effect, the judgment entered October 6, 2017 pursuant thereto is granted, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial (see CPLR 3212 [g]) was whether defendant's denial of claim forms were timely. At the nonjury trial, defendant's claim representative was prepared to testify that defendant had timely requested plaintiff's assignor to appear for an examination under oath (EUO) and had denied the claims at issue within 30 days after conducting that EUO. After examining the denial of claim forms, the Civil Court concluded that the denials could not be timely, as they were based upon the assignor's failure to appear for duly scheduled independent medical examinations (IMEs), but were mailed more than 30 days after that failure to appear. Therefore, without taking testimony from defendant's witness, the Civil Court directed a verdict in plaintiff's favor. Defendant timely moved, pursuant to CPLR 4404 (b) to set aside the Civil Court's decision. On October 6, 2017, a judgment awarding plaintiff the principal sum of $1,791.73 was entered and, by order entered June 25, 2018, the Civil Court denied defendant's motion. Defendant appeals.

As this court has held, where an insurer timely requests verification, its time to pay or deny a claim does not begin to run until it has received all of the requested verification, including the conducting of an EUO, and the insurer need not deny a claim while it is waiting for requested verification even if it already has a basis to deny such claim (see Parisien v. Citiwide Auto Leasing, 64 Misc 3d 132[A], 2019 NY Slip Op 51050[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Active Care Med. Supply Corp. v. American Tr. Ins. Co., 61 Misc 3d 138[A], 2018 NY Slip Op 51584[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Alev Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] ). As a result, the Civil Court's holding that defendant was precluded from denying the claims based upon the assignor's failure to appear for IMEs was erroneous. As no testimony was taken, the matter must be remitted to the Civil Court for a new trial.

Accordingly, the order is reversed, defendant's motion, pursuant to CPLR 4404 (b), to set aside the decision of the Civil Court, and, in effect, the judgment entered pursuant thereto is granted, and the matter is remitted to the Civil Court for a new trial.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.