Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co., 2014 NY Slip Op 01166 (2d Dept. 2014)
“However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the subject claim (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). The defendant submitted evidence showing that it mailed to the plaintiff a denial of claim form NF-10 within the requisite 30-day period (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[c]). Although the denial of claim form incorrectly stated the amount of the claim and the amount in dispute, under the circumstances of this case, these minor errors did not render the denial fatally defective and a nullity”
…
“Contrary to the plaintiff’s contention, the fact that the defendant attached to its denial of claim form an unaffirmed and unsworn peer review report, which contained a stamped facsimile of the physician’s signature and did not comply with CPLR 2106, did not render the denial of claim ineffective, since the defendant was not obligated to submit the peer review report in the first instance (see CPLR 2106; cf. Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778). The relevant no-fault regulations do not require that a denial of claim form be supported by a peer review report or other medical evidence at the time that the denial of claim form is issued (cf. 11 NYCRR 65-3.8). Indeed, this Court has previously held that a defendant is not required to set forth a medical rationale in its denial of claim form”
(1) The denial with the incorrect information is sufficient to avoid preclusion. It appears that this case rehashes 65-3.8(h): “With respect to a denial of claim (NYS Form N-F 10), an insurer’s non-substantive technical or immaterial defect or omission shall not affect the validity of a denial of claim. This subdivision shall apply to medical services rendered, and to lost earnings and other reasonable and necessary expenses incurred, on or after April 1, 2013.”
(2) AB v. Liberty is re-affirmed. There is no news on this front. I am curious why this argument was made and why Supreme Court accepted it.
