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Statute of doom.October 2, 2011

EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720(U)(App. Term 2d Dept. 2011).

How do you lose a statute of limitations case… Well…

In the no-fault context, a cause of action accrues when payment of no-fault benefits becomes “overdue” (see Insurance Law § 5106 [a]; see also Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987]; New Era Acupuncture, P.C. v MVAIC, 18 Misc 3d 139[A], 2008 NY Slip Op 50353[U] [App Term, 2d & 11th Jud Dists 2008]). In this case, benefits became overdue 30 days after defendant’s receipt of proof of the claim (see Insurance Law § 5106 [a]; former Insurance Department Regulations [11 NYCRR] § 65.15 [g], now Insurance Department Regulations [11 NYCRR] § 65-3.8; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]). The complaint alleges that a claim form in the amount of $1,707.97 was submitted to defendant on June 6, 2001. In considering a motion to dismiss a complaint as barred by the statute of limitations, the court must take the factual allegations of the complaint as true, and [*2]must resolve all inferences in favor of the plaintiff (see Island ADC, Inc., 49 AD3d 815). We note that defendant’s dismissal motion was based upon an allegation that defendant had received a bill for $1,467.95 on April 3, 2001, and that this bill, along with a bill for $240.02, are the bills which are the subject of this action. However, defendant failed to demonstrate that these two bills, one of which it claims to have received on April 3, 2001, are the subject of this action, where the complaint alleges that one bill for $1,707.97 was submitted on June 6, 2001.

Defendant should have (1) moved for summary judgment; (2) provided an affidavit explaining when each bill was received; and (3) provided a copy of each bill.

CPLR 3211(a)(5) + bills that do not add up to the amount in dispute = disaster.

4 Responses

  1. slick says:

    Off topic query:
    For a claim in 2004, a clients got bad info from the patient and billed the wrong insurance company. When I put it in suit in 2006, the company showed me it didnt insure the car he was in. They found the correct carrier for me, and I withdrew the action.

    Then, at my direction, in 2006-07, my clients billed the correct carrier along with a letter explaining the situation along with the original bills sent to the other carrier in 2004. There was no response within 30 days (or even much later). I put the case into suit in 2008. I just received discovery, and there are denials dated in 2004 claiming that the case was denied based on a peer review.

    I am 99% sure these denials were manufactured as the carrier in question did not get the claims until several years after the denials were dated.

    I am loathe to get into the conspiracy theories, but I cannot think of any reasonable justification. Anyone got any thoughts?

    • JT says:

      Write a formal complaint to the insurance department. By the way, they read this blog and the comments here. If they prove your theory true, then you have a GBL 349 action, hourly attorney fees and a place in the law journal. If not, then you still have a place in Zuppa’s heart.

  2. Kurt Lundgren says:

    In GBL 349 you need to show how the consumer in general has been injured. One incident wouldnt be enough. Get ten of them and things may get interesting. The hell with the Law Journal – you may even get published in Zuppa’s Pit.

  3. Raymond Zuppa says:

    Thanks J.T. I would immediately bring an Article 78 action. Look for mandatory langauge in a statute. Then watch the courts twist it anywhere they want to take it and cite to caselaw that as opposed to being “on all four corners” actually levitates.

    I think the theory is pretty well supported Slick. So why not sue for GBL and fraud etc.

    If they did it once they have done it more then once. So avoid “prolix pleadings” — which fly high in Federal Court – and sue.

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