Key Takeaway
First court citing of NY regulation 65-3.5(p) creates ominous legal conflicts with existing no-fault insurance verification and IME timing requirements.
Lida’s Med. Supply, Inc. v Hereford Ins. Co., 2019 NY Slip Op 51356(U)(App. Term 2d Dept. 2019)
65-3.5(p): “With respect to a verification request and notice, an insurer’s non-substantive technical or immaterial defect or omission, as well as an insurer’s failure to comply with a prescribed time frame, shall not negate an applicant’s obligation to comply with the request or notice. 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.”
“However, since defendant failed to establish that its follow-up IME scheduling letter was timely (see 11 NYCRR 65-3.6 ), its cross motion for summary judgment dismissing the complaint was properly denied. Defendant’s contention regarding the applicability of 11 NYCRR 65-3.5 (p) is improperly raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 ; Gulf Ins. Co. v Kanen, 13 AD3d 579 ), and we decline to consider it.”
The problem with this argument is that (p) on its face subverts 3.5(d), 3.5(b) and 3.6(b). It also conflicts with 5106(b) as to the 30-day pay or deny rule. In terms of an IME, 3.5(d) would have to control and 3.6(b) would be on point as to the follow-up. I could see 3.5(p) construed or “harmonized” to allow a late follow-up verification, but not a terribly late follow-up verification. It is an interesting paradigm on its face.
In the old days, we would ask Chris Maloney or Larry Fuchsberg for their opinion on the interplay between 3.5(p), 3.5(b), 3.6(b) and 3.5(d). But the opinion letter days ended before most attorneys in no-fault obtained their law licenses. I would love to know what DFS has to say. It will be up to the Court on a proper record to interpret 3.5(p). That worries me.
Related Articles
- Understanding verification requests and timing requirements in New York no-fault claims
- The 150-day verification rule and compliance obligations
- When technical verification requirements override common sense
- How equitable considerations impact no-fault verification disputes
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2019 post, 11 NYCRR Part 65 regulations governing no-fault insurance verification procedures and IME requirements may have been subject to amendments or clarifying guidance. Practitioners should verify current provisions of sections 65-3.5(p), 65-3.6, and related verification procedures, as regulatory interpretations and procedural requirements in this area have continued to evolve.
