A 30-day notice case that went to trialJanuary 6, 2014

Medical Select, P.C. v Allstate Ins. Co., 2013 NY Slip Op 23446 (District Ct. Nassau Co. 2013)

“According to the proof adduced at trial, Allstate initially received notice of the accident from its insured within one week of the accident date. It was apparently advised, at that time, that three other individuals (plaintiff’s assignors) had been injured in the accident.”

“Following receipt of the signed NF-2’s, Allstate took no immediate steps to advise plaintiff’s assignors that their NF-2’s had been submitted too late, nor did it advise them that a late submission could be excused. Instead, it was not until Allstate began receiving assigned claims from the plaintiff provider that it first asserted, in its timely denials of the provider’s claims, that it was refusing to pay for necessary treatments due to the assignors’ failure to give written notice to defendant within 30 days of the accident.”

“Each of the denials includes the following explanation: “Claim denied for failure to comply with written notice requirement. Notice must be given as soon as reasonably practicable, but in no event more than 30 days after the accident date, unless the eligible injured person submits written proof providing clear and reasonable justification for failure to comply with such time limitation…” Using almost identical language, the denials added: “reasonable justification not proven, for proof of claim. [T]herefore claim is denied.”


“Unlike the circumstances presented in SZ Med. PC v County-Wide Ins. Co., the insurer’s denials include language which partially tracks the language of 11 NYCRR 65-3.3(e). However, on balance, the Court concludes that the language employed fails to substantially satisfy the requirements of this section. At the very least, a valid denial must include some language indicating that the claimant “may submit additional information (such as justification for delay) and that reconsideration is possible.Hempstead Pain & Med. Servs., PC v General Assur. Co., supra. The denials, here, fail to do so.”

“Instead of containing the required advisory, the denials simply present a fait accompli conclusion that “reasonable justification” was “not proven.” Although plaintiff’s assignors were copied on the denials, they were never specifically advised, in the denials or otherwise, that they could or should submit additional information explaining why the NF-2 forms were submitted more than 30 days after the accident.”

“In the case at bar, such “explicit notice” is lacking. Moreover, defendant’s trial proof did not demonstrate that it had established “standards for review” of late claims, or that it had established “procedures, based upon objective criteria, to ensure due consideration of denial of claims based upon late notice or late submission of proof of claim … (11 NYCRR 65-3.5[l]).”


This case absolutely begs the question: why didn’t Allstate move for summary judgment?  First, the “prefatory language” part of the opinion would have been controlled in a pro-forma affidavit that on balance would have made a better record on appeal.  And make no mistake, the failure of the Assignor or the medical provider to seek reconsideration pre-suit renders this opinion wrong on the law.  The recent precedent suggests that to be the case,  In addition, 65-3.5(l) does not form a basis for evaluating these types of case, in accordance with the most recent pronouncements on the 30-day rule.

But to appeal these cases in the trial postulate, where uncontrolled testimony or “trial stips” can muddy the record is a dangerous game to play.

3 Responses

  1. Wang Chung says:

    This is a Wang Chung. Wang Chung advice to Allstate — Appweal Case to App Term 2. Leave brief blank. Let cowrrupt communwist officwials fill in. They will come up with reason to rob cwlaimant.

  2. Wang Chung says:

    This is a Wang Chung … bye bye Threshold

    The Supreme Court denied the defendants’ motion for summary judgment on the ground that the defendants failed to address the plaintiff’s claim that she sustained a serious injury under the 90/180 category of Insurance Law § 5102(d). The defendants, however, submitted a transcript of the plaintiff’s deposition testimony, which established that the plaintiff did not miss any time from work as a result of the subject motor vehicle accident (see Beltran v Powow Limo, Inc., 98 AD3d 1070, 1071; Jean v Labin-Natochenny, 77 AD3d 623, 624). Accordingly, the Supreme Court should not have denied the defendants’ motion on that ground. We affirm, however, on a different ground.

    One of the defendants’ examining physicians found a significant limitation in the range of motion in the extension of the cervical region of the plaintiff’s spine. That physician’s opinion that the injury to the cervical region of the plaintiff’s spine was not a result of the subject motor vehicle accident was entirely conclusory (see Landman v Sarcona, 63 AD3d 690, 691; Powell v Prego, 59 AD3d 417, 419). Accordingly, the defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957).

    Stacey M. Patterson, respondent,
    Metropolitan Suburban Bus Authority,
    et al., appellants.

    — N.Y.S.2d —-, 2013 WL 6486084, 2013 N.Y. Slip Op. 08234, 2 Dept. 2013.

  3. The Fabulous Freebird says:

    The recent precedent involves cases where the insurer didn’t know about the accident until more than 30 days after it occurred. In this case, the insurer knew of the accident several days after its occurrence, and made a second request for an NF2 more than 30 days after the accident. In making the request, the insurer told the insured that it would consider the claim if they returned a signed copy of the NF2, which the insured did, presumably expecting that the lateness would be excused, and that his treatment would be covered. Allstate then denied the claim anyway, even though the insured did what the insurer requested. Allstate never requested an explanation for the delay. The facts were really bad for the insurer. It looked like they were playing games with their insured. Since both written notice and proof of claim are covered under NYCRR 65-1.1(d), the Judge was right on the law.
    The real lesson insurance companies can learn from this is that they should accept reasonable settlement offers, instead of bringing 30 day notice cases to trial.

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