Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2008 NY Slip Op 51552(U) (App. Term, 2d)
“Where a plaintiff’s noncompliance with a disclosure order does not result in a dismissal with prejudice, or an order of preclusion or summary judgment in favor of defendant so as to effectively close plaintiff’s proof, dismissal resulting from the noncompliance is not a merits determination so as to bar commencement of a second action” (Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615-616 [1985]; see Daluise v Sottile, 40 AD3d 801, 802-803 [2007]; Aguilar v Jacoby, 34 AD3d 706, 707 [2006]). In the case at bar, plaintiff’s prior action was [*2]dismissed after the court below granted defendant’s motion to strike the complaint pursuant to CPLR 3126 (3). Since plaintiff’s noncompliance did not “result in a dismissal with prejudice, or an order of preclusion or summary judgment,” plaintiff was not barred from commencing a second action (see Maitland, 65 NY2d at 615-616; Daluise, 40 AD3d at 802). Accordingly, the court below properly denied defendant’s motion for summary judgment dismissing the
complaint based on the doctrine of res judicata (cf. First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2008 NY Slip Op 51266[U] [App Term, 2d & 11th Jud Dists 2008] [so-ordered stipulation concerning discovery provided that a failure to provide the discovery would result in preclusion]).
North N.Y. Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 2008 NY Slip Op 51557(U) (App. Term, 2d)
An insurance carrier is required to either pay or deny a claim for no-fault benefits within 30 days of the date the insurer receives the proof of claim (see Insurance Department Regulations [11 NYCRR] § 65.15 [g] [3], now Insurance Department Regulations [11 NYCRR] § 65-3.8; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Insurance [*2]Department Regulations (11 NYCRR) § 65.15 (d) (2) provides that additional verification required by an insurer is to be requested within 10 business days of receipt of a prescribed claim form. Where, as here, defendant requested additional verification 12 business days after receiving plaintiff’s NF-3 claim form, the 30-day period within which defendant was required to pay or deny plaintiff’s claim was correspondingly reduced to 28 days (Insurance Department Regulations [11 NYCRR] § 65.15 [g] [10], now Insurance Department Regulations [11 NYCRR] § 65-3.8 [j]; see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]). Since defendant concedes that it received the requested verification on May 16, 2001, defendant was required to pay or deny the claim at issue on or before June 13, 2001. As defendant did not deny plaintiff’s claim until June 14, 2001, defendant’s denial of plaintiff’s claim was untimely and defendant is precluded from raising its proffered defense of lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997], supra).
Prime Psychological Servs., PC v American Tr. Ins. Co., 2008 NY Slip Op 28273 (Civ Ct City NY, Richmond County)
The same reasoning applies to the instant matter. Plaintiff does not claim that the information contained in the NF -10 was “insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law.” Nor does plaintiff contend that it was deprived of prompt specific notice as to the reasons for the insurer’s denial or that it was prejudiced because it only received one copy of the NF – 10. In fact, since the regulations set forth that both the original NF-10 form and its duplicate shall be served on the medical provider, the service of the duplicate NF-10 is basically redundant. As such, plaintiff’s contention that it must be awarded summary judgment because the denial was not issued in duplicate runs counter to the very legislative intent behind the No – Fault Law – to process claims within a short time frame and expeditiously so as to avoid prejudice and red tape dilatory practices.
As such, both plaintiff’s and defendant’s motions for summary judgment are denied and this case is to proceed to trial.