Second Department Appellate Division Grants Progressive Insurance Company Leave to Appeal in Alur Medical Supply

Hat tip to Dave Gottlieb, hat tipping Damin Toell. 

On November 5, 2009, the Appellate Division, Second Department, granted the unopposed motion of Progressive Insurance Company for leave to appeal the Appellate Term, Second Department's April 7, 2009 decision in Alur Med. Supply, Inc. a/a/o Teresa Radriguez v. Progressive Ins. Co., 23 Misc 3d 130(A) (App. Term, 2d Dept., 2d, 11th & 13th Dists., decided 4/7/2009).

In Alur Medical, the Appellate Term held that a no-fault insurer can be penalized for doing something too quickly.  Yes, that's right.  Or wrong.  The court held for the second time that a follow-up verification request sent before the expiration of that initial 30-day period of 11 NYCRR § 65-3.6(b) is premature and a nullity, rendering the no-fault insurer's eventual denial untimely and precluding it from raising most defenses, including lack of medical necessity.  Progressive had sent its follow-up verification request on Day 30, instead of on Days 31 through 41. 

Assuming a standard briefing schedule, we should see a decision from the Second Department in mid-2010.