The faiure to issue a denial in duplicate is no necessarily fatal to preserving a defenseDecember 19, 2013

 Mollo Chiropractic, PLLC v American Commerce Ins. Co., 2013 NY Slip Op 23419 (App. Term 2d Dept. 2013)

“The Civil Court therefore found, in effect, that defendant’s defense of lack of medical necessity was precluded because it was not preserved in proper duplicate copies of the denial of claim form submitted to plaintiff.”

“It is noted that, subsequent to Rusk, the Appellate Division has found that other errors in denials should not be considered fatal, when such errors do not pose the possibility of any prejudice to the claimant (see e.g. NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2011] [finding that a denial was not “rendered a nullity” by possible errors, when such errors “were not significant by themselves, and did not pose any possibility of confusion or prejudice to the [plaintiff] under the circumstances”]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1169 [2010] [“minor factual discrepancy” did not invalidate a denial which “was not conclusory or vague, and did not otherwise involve a defense which had no merit as a matter of law”]). Upon reviewing the language in Rusk, we note that the Appellate Division did not base its decision therein solely on the defendants’ failure to serve the denial in duplicate….  However, in light of the Appellate Division cases decided after Rusk, we are no longer of the opinion that the failure to send a denial in duplicate should, on its own, be considered a fatal error that would prevent a defendant from being able to raise any otherwise meritorious, but precludable, defenses.


One Response

  1. Rookie says:

    Again, they rule one day one way and another day another way, where does it say that the denial does not have to be in duplicate and then Plaintiff has to show additional problem with the denial, it is ridiculous, they create new law as they go.