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DWI defense non-upheld: mailing, denials and affidavits gone awryMarch 5, 2011

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 01458 (2d Dept. 2011)

If it could have gone wrong, it did.

“In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff’s claim. The defendant’s denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375).”

One Response

  1. Larry Rogak says:

    Because this was my case, and my appeal, please allow me to make a guest appearance on your blog.

    Anyone who attended the oral argument and read the briefs would be hard-pressed to understand the decision. There were two denials: a “blanket” denial issued shortly after the bill was received, based on the assignor’s DWI conviction in connection with the accident, and a second, specific denial which was timely on its face (about 28 days after bill receipt).

    The motion for summary judgment was accompanied by an affidavit from the adjuster which, in its 25 paragraphs, was as specific as any that one could imagine. But at oral argument, one of the judges asked me why the affidavit did not give the name of the employee who brings the mail to the post office. My response was that I knew of no such requirement, and besides, it is well-established case law that the affidavit need only be from an employee familiar with the procedures, not necessarily the one who performs every step.

    At oral argument I made an impassioned plea for the Court to abandon the “manic preoccupation with form over substance” described by the Appellate Term, 1st Dept in the recent “AA Acupuncture” case. Obviously that plea fell on deaf ears — I didn’t even get a dissenting opinion.

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