Index No. CV-700373-24. Civil Court of the City of New York, Queens County. Decided September 21, 2025.
Raymond Mak, Esq. counsel plaintiff QUEENS RADIOLOGY IMAGING, PC. Lauren J Levine, Esq. counsel for defendant GEICO.
PATRICK HAYES TORRES, J.
The Decision and Order on defendant’s notice of motion for summary judgment seeking to dismiss plaintiff complaint for defendant’s failure to timely provide verification response within 120 days. Plaintiff opposes and cross moves seeking summary judgment claiming they submitted bills timely and defendant failed to pay the claims. For the reasons set forth below, the defendant’s motion for summary judgment is granted and plaintiff’s cross motion is denied.
Plaintiff commenced this action to recover No-Fault benefits as reimbursement for medical services it provided to the assignor. Defendant now moves for summary judgment on the grounds that plaintiff failed to respond to its verification requests. Defendant in support of their summary judgment motion, submitted an affidavit from its Claim Supervisor outlining the claim procedures, verification requests, additional verification request and the mail processing procedures; and General Manager of Pitney Bowes, detailing the mail procedure from defendant to the United States Post Office. Defendant claimed plaintiff’s assignor failed to fully comply with a pre-Examination Under Oath (Herein referred as “EUO”) verification request and post-EUO verification request that remains outstanding.
Defendant sent out an initial verification request on January 2, 2023, and January 27, 2023, along with EUO request from bills received on December 15, 2022, and January 5, 2023. After several adjournments the plaintiff appeared for an EUO on May 11, 2023, however, plaintiff at no time submitted a response to the initial verification request nor provided a reason for not submitting a response. As a result of the EUO, defendant on May 25, 2023, demanded plaintiff respond to the original verification request and also requested additional verification. Defendant again followed up with plaintiff on June 30, 2023, for the verifications. According to defendant, plaintiff partially responded to defendant’s verification request on September 1, 2023, and a letter was sent on September 11, 2023, detailing the deficiencies in plaintiff’s response to the verifications. Defendant failed to contest the partial verification. Thereafter, defendant issued a global denial on October 16, 2023, due to plaintiff’s failure to respond to defendant’s verification request within the statutory 120-day period pursuant to 11 NYCRR §65-3.5(o).
In opposition, plaintiff relied on a recent case Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41 (App Term, 2d, 11th & 13th Jud Dists 2024). Plaintiff argued that according to Burke, verification is deemed to have been received and completed on the day of the EUO which was May 11, 2023, and as such, the defendant would have had until June 10, 2023, to pay or deny the claim.
Generally, a carrier has 30 days to pay or deny a claim. A no-fault insurance carrier under the No-Fault statutory scheme may require an eligible injured person or assignee of the injured person, to submit a written proof of claim under oath; to submit to examinations under oath, and to request information that may assist the carrier in determining the claim. See 11 NYCRR §65-1.1. An EUO is a verification. Where a carrier properly demands an examination under oath, “the verification is deemed to have been received by the insurer on the day the examination was performed.” See 11 NYCRR §65-3.8(a)(1). Thus, the carrier’s 30-day period in which to pay or deny a claim may be extended where the insurer makes a request for additional information within 15 business days of its receipt of the claim (see 11 NYCRR §65-3.5[b]).
The Burke case is distinguishable to the circumstances to this case. Here, written verifications were requested pre-EUO while in Burke written verification was not requested until after the EUO was completed. In the instant matter, the EUO was completed on May 11, 2023. Thus, defendant had until about June 10, 2023, to either deny or pay plaintiff’s claim. Defendant however requested additional verification on May 25, 2023, which was within the 15-day period of the EUO. Since defendant’s verification request was timely, the 30-day limit was tolled at the time of the verification, which was May 25, 2024. Defendant, on June 30, 2023, timely followed up by letter to plaintiff seeking the verification responses. See 11 NYCRR §65-3.6(b). An insurer is not obligated to pay or deny a claim until all demanded verification is provided. Thereafter, defendant issued a global denial on October 16, 2023, due to plaintiff’s failure to respond to defendant’s verification request within the statutory 120-day period pursuant to 11 NYCRR §65-3.5(o).
As to defendant’s verification request defense, ultimately, the nature of a summary judgment motion is to ascertain whether triable issues of fact remain. Here, the court finds that the defendant established a prima facie case that the plaintiff failed to fully comply with the verification requests within the 120-day statutory period and that additional verification remained outstanding. Plaintiff neglected to contest defendant’s claim that plaintiff partially responded to their verification. The burden shifted to plaintiff who failed to create a triable issue of fact as to defendant’s affirmative defense. See Zuckerman v. City of New York, 49 NYS2d 577 (1980). Moreover, plaintiff in their cross motion for summary judgment failed to submit an affidavit of personal knowledge that the bills were submitted timely and that they were overdue.
Considering the foregoing, the defendant’s motion for summary judgment is granted and plaintiff’s cross-motion for summary judgment is denied as moot given the Court’s decision. Any relief not expressly addressed herein has nonetheless been considered and is denied.
This constitutes the decision and order of the court.