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Couldn’t get it right the second time aroundMay 23, 2010

Central Radiology Servs., P.C. v MVAIC, 2010 NY Slip Op 50887(U)(App. Term 2d Dept. 2010)

“During oral argument, the Civil Court granted defendant leave to submit a supplemental affidavit with respect to the mailing of defendant’s denial of claim form. By order entered April 1, 2009, the court granted defendant’s motion for summary judgment and denied plaintiff’s cross motion.

This appeal by plaintiff ensued.   A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]). Defendant did not send IME scheduling letters to plaintiff’s assignor. Rather, defendant utilized a third party, Medical Consultants Network (MCN), to schedule IMEs on behalf of defendant. The letters upon which defendant relies were sent by MCN and addressed to defendant, not plaintiff’s assignor, and stated that the purpose of the letters was to “confirm” that defendant had requested examinations of plaintiff’s assignor on specified dates. MCN’s customer service representative averred that MCN had sent a “carbon copy” of this letter to plaintiff’s assignor. Contrary to defendant’s contention, such letters were not proper requests for verification which tolled defendant’s time to pay or deny plaintiff’s claim (Insurance Department Regulation [11 NYCRR] § 65-3.8).”

Mistakes happen.  We are all guilty of them.  Clearly, the wrong letters were placed in the MSJ, Defendant accidentally won and now the defendant is being called on it.  I would have settled this during the CAMP conference, paid the settlement myself and told the client: “sorry”.

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