Nonsensical appeal

Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 2015 NY Slip Op 51220(U)(App. Term 2d Dept. 2015)

I would recommend reading this one carefully.  This case (again) lays out the parameters of what a timely IME or EUO letter is.  Contrarily, it tells us what is not timely and should be settled.  Considering that this Court cannot follow Unitrin (that would be the Progressive case from the Appellate Division a few months ago), there was not where to go in this case.
“Pursuant to the No-Fault Regulations, “any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the [NF-3]” (11 NYCRR 65-3.5 [b] [emphasis added]). Defendant did not request that plaintiff appear for an EUO until more than 15 business days, and even more than 30 calendar days (see generally 11 NYCRR 65-3.8 [l] [providing that deviations from the verification time frames reduce the 30 days to pay or deny the claim by the same number of days that the request was late]), after it had received the bills at issue. Thus, even if the EUO scheduling letters were timely with respect to any other pending claims which may exist but are not before us, they were untimely with respect to the bills at issue. Indeed, this would be true even if defendant had tolled the 30-day period within which it was required to pay or deny the bills at issue, by timely requesting verification pursuant to 11 NYCRR 65-3.8 (a), as the Regulations do not provide that such a toll grants an insurer additional opportunities to make requests for verification that would otherwise be untimely. Consequently, the EUO scheduling letters were nullities with respect to the bills at issue and, therefore, defendant’s motion for summary judgment was properly denied