Not Sending Duplicate NF-10 to Provider Not Fatal to Claim Defenses

NO-FAULT – NF-10'S IN DUPLICATE – 11 NYCRR § 65-3.8
Prime Psychological Services, PC, a/a/o Raymond Perez v. American Transit Ins. Co.
(Civil Ct., Richmond Co., decided 6/26/2008)

On an "issue of first impression", Richmond County NYC City Civil Court Judge Katherine A. Levine has held that a no-fault insurer's failure to send a duplicate copy of a timely NF-10 is not fatal to the coverage defenses asserted therein.

American Transit issued a timely NF-10 to plaintiff medical provider, citing lack of medical necessity as the ground for denying payment. Plaintiff sought summary judgment in this action based on American Transit's alleged failure to issue the NF-10 "in duplicate", as required by 11 NYCRR §65-3.8. American Transit did not admit or deny having sent only one NF-10 to plaintiff, but merely stated that the omission, if any, was neither "basic" nor "numerous" citing Nyack Hospital v. State Farm Mutual Ins. Co., 16 AD2d 564 ( 2nd Dept. 2005).

After reviewing and distinguishing a number of New York cases addressing no-fault denial sufficiency and borrowing from the rationale of a 1966 New York County Supreme Court decision on service of legal papers (in which the court stated that is "does not count the papers. It looks rather to their merit and their substance. No litigant who states a cause of action will be turned away by mistakes in labeling or in his counting of the papers required to be served"), Judge Levine held:

The same reasoning applies to the instant matter. Plaintiff does not claim that the information contained in the NF -10 was "insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law." Nor does plaintiff contend that it was deprived of prompt specific notice as to the reasons for the insurer's denial or that it was prejudiced because it only received one copy of the NF-10. In fact, since the regulations set forth that both the original NF-10 form and its duplicate shall be served on the medical provider, the service of the duplicate NF-10 is basically redundant. As such, plaintiff's contention that it must be awarded summary judgment because the denial was not issued in duplicate runs counter to the very legislative intent behind the No-Fault Law - to process claims within a short time frame and expeditiously so as to avoid prejudice and red tape dilatory practices.

As such, both plaintiff's and defendant's motions for summary judgment are denied and this case is to proceed to trial.