Key Takeaway
New York Court of Appeals ruling requires insurers to show "due consideration" when denying late no-fault claims, changing how prima facie defenses must be established.
“Due Consideration” Requirement Changes No-Fault Late Notice Defense Strategy
The landscape of no-fault insurance claim defenses shifted significantly with a 2011 New York appellate ruling that introduced a crucial procedural requirement. Insurance companies can no longer simply assert that a healthcare provider’s explanation for late submission was inadequate—they must now demonstrate they gave “due consideration” to the provider’s excuse.
This development affects how insurers handle violations of both the 45-day rule for initial claim submissions and the 30-day rule for supplemental documentation. The change represents a meaningful shift from purely procedural compliance toward a more substantive review standard, requiring insurers to engage with providers’ explanations rather than dismiss them outright.
Understanding this requirement is essential for both healthcare providers submitting claims and insurers defending against late notice allegations in the no-fault system.
Jason Tenenbaum’s Analysis:
Bronx Expert Radiology, P.C. v NYC Tr. Auth., 2011 NY Slip Op 51571(U)(App. Term 1st Dept. 2011)
Prima facie defenses to a 45-day or 30-day rule violation now requires “due consideration” to the explanation the provider gave. So the affidavit now reads: “We considered the excuse, and found it unavailing because….” That should do the trick.
“Defendant’s cross motion for summary judgment dismissing the complaint was properly denied as defendant failed to establish that it gave “due consideration” to the explanation offered by plaintiff for the late submission of its no-fault claims as required by the insurance regulations (see 11 NYCRR 65-3.5; Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 863 ; Bronx Expert Radiology v Clarendon Natl. Ins. Co., 23 Misc 3d 133, 2009 NY Slip Op 50747 ).”
Key Takeaway
Insurance companies defending against late no-fault claims must now affirmatively demonstrate they gave “due consideration” to healthcare providers’ explanations for timely notice violations. This procedural shift requires insurers to substantively address excuses rather than simply asserting they were insufficient, fundamentally changing how prima facie defenses are established in late notice disputes.
Legal Update (February 2026): Since this 2011 post, New York’s no-fault regulations have undergone multiple amendments, including updates to 11 NYCRR 65-3 regarding timely notice requirements and procedural standards. The “due consideration” standard for late notice defenses may have been refined through subsequent regulatory changes or court interpretations. Practitioners should verify current provisions of Section 65-3.5 and related subsections to ensure compliance with current procedural requirements for late notice defenses.
