RIGHT AID MEDICAL SUPPLY, CORP. v. STATE FARM MUTUAL AUTO. INS. CO., 53 N.Y.S.3d 523
The sole issue at trial was whether the verification requests were outstanding. There were no witnesses called by either party. The court left the record open solely to address the legal issue of which party bears the burden of establishing whether the verification requests remain outstanding.
The Civil Court stated as follows:
It is well settled that an insurer may toll the 30–day period to pay or deny a claim by properly requesting verification within 15 business days from its receipt of the proof of claim form or bill. 11 NYCRR § 65–3.5(d); Psych. & Massage Therapy Assoc., PLLC v. Progressive Casualty Ins. Co., 5 Misc.3d 723, 789 N.Y.S.2d 661 (Civ.Ct., Queens Co., 2004). If the “requested verification has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by a telephone call or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” 11 NYCRR § 65–3.6(b). “A claim need not be paid or denied until all demanded verification is provided.” New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., 5 A.D.3d 568, 570, 774 N.Y.S.2d 72 (2d Dept.2004); Prime Psychological Services, PC v. ELRAC, Inc.,25 Misc.3d 1244[A], 2009 N.Y. Slip Op. 52579[U], 2009 WL 4894360 (Civ.Ct., Richmond Co.2009); see also Insurance Law § 5106(a); 11 NYCRR §§ 65–3.5(c), 65–3.8(a)(1). As for services rendered on or after April 1, 2013, if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, the insurer may deny the claim. 11 NYCRR § 65–3.5(o ). In the court’s view, Defendant’s argument that Defendant established mailing of the 120–day denial obviates Defendant’s burden to demonstrate prima facie that it had not received the requested verification is unpersuasive as the sole issue for trial is whether the verification requests remain outstanding. Defendant generally bears the burden of proving its affirmative defense (Manion v. Pan Am. World Airways, Inc., 55 N.Y.2d 398, 449 N.Y.S.2d 693, 434 N.E.2d 1060  ). Defendant failed to present any witnesses at trial to prove that it, in fact, did not receive any response to its verification requests. Lastly, Defense counsel has not cited any case law that would convince this court to find otherwise. To the extent that Defense counsel discusses any outstanding discovery in its memorandum, such issue is not before the court and therefore was not considered. Based on the foregoing, the court finds that the Defendant has failed to meet its burden of establishing its affirmative defense of outstanding verification and as the Order of the Honorable Steven Mostofsky found that Plaintiff established its prima facie case, the Clerk is directed to enter judgment in favor of the plaintiff in the amount of $2,389.76 with applicable statutory attorney’s fees, interest, costs and disbursements.