The plaintiff's position finds apparent support in Presbyterian Hosp. In Presbyterian Hosp., the insurer was precluded by a violation of the "thirty day rule" from advancing an intoxication exclusion defense. The Court stated (90 NY2d at 280-281) that the insurer, because no request for verification was made within the allotted 10 days, had failed to obtain an extension of the 30 days:
"In order for the insurer to have properly and timely requested the blood alcohol test results, it had to forward prescribed verification forms to the appropriate parties within 10 days after receipt of the completed application (
see, 11 NYCRR 65.15 [d] [1]). The insurer utterly and flatly failed to do so and, thus, chose [not] or neglected to take advantage of its prescribed extension of time opportunity for considering denial of the hospital's claim * * *
"[S]ince Maryland neither denied the claim within 30 days after receiving it nor properly sought to extend that time frame by requesting verification, using the prescribed forms, within 10 days after receipt of the hospital's completed application, it failed to comply with its obligation to timely deny or disclaim Presbyterian's no-fault claim."
Language utilized by the Appellate Division, too, would appear to support the plaintiff. In
Presbyterian Hosp. v Aetna Cas. & Sur. Co. (233 AD2d 431, 432 [2d Dept 1996],
lv denied 90 NY2d 802 [1997]), the Appellate Division stated that the regulatory requirement that if a request for verification is not responded to within 30 days it must be "followed up" within 10 days "must be strictly construed," and imposed preclusion against an insurer who failed to follow up within the allotted 10-day period. (
See also, Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [2d Dept 1999] [insurer's "failure to raise such objections (to adequacy of claim forms) within the 10-day verification period constitutes a waiver of any defenses based thereon (citation omitted)"].) 11 NYCRR 65.15 (g) (10), however, appears to contradict this case authority. 11 NYCRR 65.15 (g) (10) provides:
"For the purposes of counting the 30 calendar days after proof of claim, wherein the claim becomes overdue pursuant to
section 5106 of the Insurance Law * * * any deviation from the rules set out in this section shall reduce the 30 calendar days allowed.
"Example: Where an insurer sends an application for motor vehicle no-fault benefits 15 business days after notice is received at the address of the insurer's proper claim processing office instead of five business days, the 30 calendar days permitted by paragraph (1) of this subdivision are reduced to 20 calendar days."
The unmistakable regulatory intent was that any delay by the defendant insurer in sending out forms requesting additional verification will act to shorten the defendant insurer's time for considering the claim upon receipt of full proof, but will not wholly bar the insurer from obtaining the benefit of a deferred period to obtain and consider the required proof. The clear effect—but obscure nature—of this regulatory provision has been noted by commentators in the field. As observed in Jaffe and Chu,
Using Independent Medical Examiners in No-fault (NYLJ, May 10, 2001, at 1, col 1):
"Most [plaintiff's attorney's] learn quickly that the thirty days are extended by verification requests.
"Some know the exceptions to the preclusionary rule. Almost no one knows that a verification request more than 10 business days subsequent to receipt of a claim is not defective, but rather reduces the number of days from 30 in which an insurer must pay or deny."
The cases which appear to support the plaintiff are in fact not to the contrary. In each of those cases, the insurer had delayed to such an extent that not only was the 10-day limit surpassed, but more than 30 days had been exceeded, so that even the application of 11 NYCRR 65.15 (g) (10) could not have saved the insurer. (
See, Presbyterian Hosp., supra, 90 NY2d at 277, 280 [claim form submitted on August 15, 1994, and verification not requested until October 13, 1994];
Aetna Cas., supra, 233 AD2d at 432-433 [verification requested November 13, 1992, 30 calendar days thereafter was December 12, 1992, 10-day limit for follow-up expired, but no follow-up made before February 26, 1993];
Mount Sinai Hosp., supra, 263 AD2d at 13-17 [claim form submitted November 14, 1997, but first request for verification made thereafter was December 22, 1997].) Those appellate courts were therefore not required by the facts before them to focus on the specific issue presented here, and the broad general language utilized by them should not be construed as determinative of it. The statute itself—Insurance Law Â
§ 5106 (a)—gives the insurer 30 days "after the claimant supplies proof of the fact
and amount of loss sustained" to deny the claim. The regulatory scheme standardizes and delimits the procedure and time frame for obtaining that proof, and thus properly implements the statutory purpose. To determine, however, as the plaintiff here requests, that a one-day deviation from the promulgated standards deprives the insurer entirely of an opportunity to obtain and review the needed "proof," would contravene rather than implement the statutory intent. As held in
Vinings Spinal Diagnostic v Liberty Mut. Ins. Co. (
supra, 186 Misc 2d at 291, quoting
Presbyterian Hosp.), "the
raison d'etre of the
Presbyterian Hosp./Central Gen. Hosp. line of cases is `a focus on avoiding prejudice to insureds by providing for prompt payment or disclaimers of claims.'" By providing that any delay by the insurer in mailing out the verification forms will penalize the insurer by truncating the presumptive 30-day period which the insurer itself would otherwise have to eventually review the proof submitted, 11 NYCRR 65.15 (g) (10) adequately serves this purpose. Not so the draconian result which the plaintiff would visit upon the insurer by dint of a single day's delay. In the instant case, after receipt of the plaintiff's verification, the defendant insurer is conceded to have denied the plaintiff's claim well within the 29 days which remained to it under 11 NYCRR 65.15 (g) (10). The defendant insurer is therefore entitled to have this case addressed upon its merits.