How do you overcome the presumption of mailing?May 30, 2012

The Appellate Term has given us a little more guidance since Pomona v. Travelers came out last year.  However, Comprehensive Neurological did not meet the test on this case.

Comprehensive Neurological Servs., PA v Tri-State Consumer Ins. Co., 2012 NY Slip Op 50950(U)(App. Term 2d Dept. 2012)

“The affidavit of plaintiff’s medical billing supervisor, while explaining in general terms the office procedure followed by plaintiff in “document[ing] receipt of [verification] request[s] into our computer system,” failed to set forth any facts tending to indicate that the affiant or anyone else in plaintiff’s billing department in fact checked the “computer system” to ascertain whether the verification letters shown to have been sent by defendant had been “documented” as received. The professed status of plaintiff’s affiant as “custodian” of the case file was insufficient, on this record and without more, to overcome the presumption of receipt created by defendant’s proof of proper mailing of its verification letters”

In trying to put this all together, there are a few trends that are evident.  An affidavit of mailing does not need to recite the dates something is dispatched.  A recitation of someone who knows the office procedure and generally describes it can aver that something is mailed on the date set forth on the dated correspondence or some subsequent business day will meet the burden.   Added fluff in the affidavit is always welcome, but too much fluff will spawn inconsistencies and cause the affidavit to lead to complete defeat.  Point of Health Acupuncture, P.C. v GEICO Ins. Co., 2010 NY Slip Op 51724(U)(App. Term 2d Dept. 2010)

An affidavit attempting to defeat the presumption of mailing has to be bill, event and document sufficient.  The best discussion of this was found recently in a case I cited on here: Matter of Matter of Government Empls. Ins. Co. v Morris, 2012 NY Slip Op 03448 (2d Dept. 2012).

A double standard?  I know someone is going to exclaim that this a conspiracy of the courts.  I await Zuppa’s analysis.

28 Responses

  1. Raymond Zuppa says:

    It is the Courts pushing No Fault into Arbitration where insurance company paid Arbitrators who are insurance company lawyers can make the decisions.

    Corporate Power at its finest. Amerika.

  2. mitchell lustig says:

    What I find intersting about this case is that the Court cited Nassau Insurance Company v. Murray which is the basis for the opinion of the Appellate Division, Second Deparrment in St.Vincent’s Hosptial v. Gecio. It now appears that the First Dept is following the Second Department regaring proof of mailing which should make it easier for no-fault insurer’s to prove timely mailing of denials and verification requests.

    • JT says:

      Historically, the First Department never got bogged down with the mailing issue, unlike the Second Department’s unfortunate foray into “cotempt v. geico”; and its concomitant “duty to ensure compliance”, prior to that court finally applying St. Vincent v. Geico…

  3. nycoolbreez says:

    seems like the incoming mail procedure was laid out but no witness ever checked to see if that procedure was applied in this case.

    It will be a double standard if insurance companies will be able to offer alternative mailing affidavits ie sometimes the denials are mailed locally and sometimes the denials are mailed remotely at our facility many many miles away without saying which denial was mailed from which facility.

  4. raymond zuppa says:

    Guys I hate to spoil your “How Many Angels Can Dance on the Head of Pin” love fest but there is no law here. No stare decisis. Only politics which means money.

    The mailing standard and double standard is so puke worthy. Such an abomination of logic, law and concepts of justice — take the crack pipes out of your mouths.

    “I work here at Screw You Ins. Co. We mail everything. Therefore we mailed this — whatever it is — denials; additional verification requests; christmas cards; large donations to government officials.”

    That’s all an insurance company has to say.

    Providers however — we have a whole new standard.

    Frankly an insurance company forcing a provider to prove mailing when the insurance company has the bills and knows it received them in a timely fashion is a violation of the law and insurance regulations.

    But only the Superintendent of Insurance or the Attorney General can enforce that law. Said entities and a whole lotta of other government entities are “honeying and making love over the nasty sty” [Hamlet] with insurance companies.

    One fornicating mass of writhing snakes. [Zuppa]

  5. Anyone but Alden says:

    “Frankly an insurance company forcing a provider to prove mailing when the insurance company has the bills and knows it received them in a timely fashion is a violation of the law and insurance regulations.”

    That State licensed insurers receive bills and then in court say, “bet you can’t prove it” indeed illustrates the failure of the NY Ins. Dept. This is contrary to most claims principles, and a lot more. Newsflash: Slavishly doing what insurers tell them to do is not regulation. Rather, it’s a receipt for fraud, like the subprime/AIG fiasco involving New York State licensed insurer AIG.

  6. raymond zuppa says:

    Why not Alden. I can see him in doing just fine in the executive branch (including regulatory agencies), legislative branch or judicial branch of government. I especially see him doing well in the fourth branch and most powerful branch of government — that’s the branch where the lobbyists hand the money over to the other three branches.

  7. Anyone but Alden says:

    JT, it’s not Zuppa v. Amerika, it’s Amerika vs the 99.99%.

    You think that this never ending depression we are in was an accident? Neither subprime, AIG, Citizen’s United, nor any recent significant matter is an accident. Neither is Obama’s failure to prosecute Wall Street over financial fraud.

    This corruption shakedown is not going to end. You seem to consider yourself immune. But that’s an unreasonable assumption. Further, it will not make your life more enjoyable as American is turned into hell in a hand basket, with your former friends hidden in the shadows, living on the streets, facing early and miserable deaths, as America is made fascist. What sort of future will our children face in the America you have crafted with your inaction?

  8. Raymond Zuppa says:

    Dear “Anyone …”

    I wish I said that. We need to talk. Please look me up.

    Everything that this country has done since 1980 has been a carefully orchestrated plan to bankrupt the middleclass. Three reasons to bankrupt the middleclass. 1) you get to steal their money; 2) they will work for anything; 3) traditionally the revolutionaries have come from an educated middleclass with time enough to go out and march.

    The wars and tax cuts combined are a prime example. Why the wars? Profits. No need to attack Iraq. Just kill Osama and his boys and maybe assassinate some of the Saudi Royal Family — Bushco’s buddies — that supported Osama.

    Who paid for the wars? The middleclass. The offshore companies and accounts. The false progressive Obama. The elimination of our rights by the Courts. We can go on and on.

    This whole place is an abomination.

    Let me be the nice guy fundamentalist — like a nice fundamentalist Christian. They believe that if you don’t believe in God the way they do you are going to hell.

    But the nice ones say nothing.

    Well if you believe in the crack pipe dream that there is still a democracy and still capitalism. If you believe that — instead of the reality that Amerika is a fascist monopoly — you are going to hell on earth.

    I can’t wait to see you there so I can laugh — “You idiot … look at you now.”

    My beliefs are based upon facts that each and everyone of you feel and confront everyday. But I will treat you nice.

    God Bless

  9. Kurt Lundgren says:

    Ray, as I have said before, you are a voice crying out in the wilderness. For what its worth, I listen.

  10. Larry Rogak says:

    The headline of this thread is How Do You Overcome The Presumption of Mailing and the last entry says that “Amerika is a fascist monopoly.” Quite the desultory conversation!

  11. trial lawyer says:

    Alden should have pled former National Security Advisor Sandy Berger’s winning affirmative defense when he got caught leaving the National Archives with classified documents in his socks and underwear. He said, “I’m sloppy.”
    He got away with it.

  12. Anyone but Alden says:

    Indeed, the never ending wars are yet another part of the Ponzi scheme that America has been converted into.

    The middle class pays for every bomb, every life lost, while the .01 percent reap an absolute windfall by virtue of massive arms contracts and massive favorable oil contracts. As a corrupted Nation, we are continually at war.

    That’s $1 trillion a year in revenue taken mostly from middle class taxpayers and thrown at arms manufacturers, security state corporations and their wealthy equity holders. Yet, nothing is allowed to trickle down, the studies are stunningly clear. America’s current doctrine of never ending war is simply looting on a massive scale.

    Obama’s, Bush’s, Congress’s and the scotus’ stunning shredding of the US Constitution over the last decade further illustrates lawlessness– “terrorism” is the pretext, while, in actuality, this is all about creating the ability to crush dissent at home at a time when our government is seemingly controlled by corruption.

    Indeed, NADA– the indefinite detention without due process act that is now subject to a Federal Court TRO– was not passed into law until long after Osama was killed and Al Queda rendered impotent. And it expressly applies to American Citizens.

    Review the New Yorker’s amazing expose on NSA Whistle-blower Thomas Drake about our security state’s quick pivot against American citizens who blow the whistle on governmental corruption. Reading between the lines and at the lines, it’s just stunning.

    Further, we now have a President who orders the extra-judicial killing of American citizens far from any battlefield without judicial process of any sort, while arguing that “due process” can be satisfied by secret death tribunals. The ultimate power that illustrates our Constitution has no meaning has been claimed, and our MSM, much of it owned by arms manufacturers like GE, remains silent.

    Special interests have destroyed the rule of law in America as it pertains to them, control the MSM, and are running countless scams to steal everything that has not already been stolen. Part of those fraud profits are used to further bribe our government. The government and massive security state is now turning on the citizens who dissent from this corruption. These last five years are not an aberration. The jobs won’t come back because they are supposed to be gone. Welcome to the United States of Putin.

  13. Anyone but Alden says:


  14. nycoolbreez says:

    Let us not debase ourselves by begrudging those that feed their families off of the backs of the ever decreasing middle class.
    Rather let us revel in the great service our little industry provides to our profession and the community in general. Look at all the ladles that dip into the alleged 400 Million dollar no-fault stream. Realize how many ladles there are for that trillion dollar industry called “the suck”.
    otherwise, what else would they do with all that tax revenue? Feed the lazy? provide medicine to those who won’t get a job? educate the spawn of the poor? please that would only take about 35% of the current tax revenue. What about the rest? better roads, parks and libraries for the unwashed? art and music? are you mad!
    Embrace the suck! be happy!or else… the terrorists will come to get you and take your freedom, silly fools.

    • JT says:

      I saw the movie the dictator this weekend. It was funny, if you are into completely politically incorrect humor. At the end of the movie, there is this great diatribe regarding the differences between a dictatorship and a democracy. I think it fits into Zuppa’s rant pretty well, and probably is consistent with some of these comments on here that for whatever there reason I am allowing to be posted. Well, you can never accuse me of being guilty of censorship.

  15. square badge square pants says:

    Back to your AmeriKKKa rants Zuppa? Now with a sock puppet “Wish I’d said that”?

    Maybe you really believe you didn’t say it, kinda like Norman Bates’ mom at the ending of “Pscyho”

    You’re one rivet short of full blown Glitterati, Black Helicopter, Fema Concentration Camp, Appollo One launch pad fire, Princess Diana homicide conspiracy meltdown.

    You should go post on a Big Foot forum where you’ll be appreciated.

  16. raymond zuppa says:

    Square Badge with the “sock puppet” remark. Obviously you know all the lingo because you spend to much time posting on your red neck forums while eating your doughnuts and collecting your government pension.

    Of course you never cite to facts just insults.

    Square Badge instead of beating you up … let me take you to dinner. I want to leave your net worth as a tip … you friggin trailer park trash (“I don’t know why they call this hamburger helper — it does fine by itself”) loser.

    NY Cool I am not unto you.

    How about this. No friggin taxes on anyone. You want to hear the rich and the Big Corps howl. Who’ll protect the banks; the sea lanes; our asses — ohh then the wealthy would scream for taxes.

    Let me tell you some simple stuff about taxes that only a moron of square badge’s calibre cannot fathom.

    Taxes. Everyone wants the services. No one wants to pay the taxes. The powerful by their very nature of being powerful skip out … way out … on their fair share.

    So my proposal is no taxes. Just like no no-fault. Watch the corporations howl in protest. “You must pay taxes. You must pay for our services.”

    The whole country is a bunch of dumb square badges. Tough talk — but not face to face.

  17. trial lawyer says:

    “Can’t we just all get along?” RK

  18. raymond zuppa says:

    That’s what RK told his girlfriend and her daughter right before he beat them to a pulp. [Did not garner that much media attention in Amerika; the beating of women is apparently not news worthy unless its Rhianna]

    That’s after he collected millions for being beaten.

    He isn’t such a nice guy.

  19. Anyone but Alden says:

    “Back to your AmeriKKKa rants Zuppa? Now with a sock puppet “Wish I’d said that”?”

    I love the Zuppa, but the Zuppa does not rant like me. Only I rant like me.

    The Zuppa was wise to call out your nomenclature. If you know what a sock puppet is, why should we think you are not using one?

    We all know I’m not the Zuppa from my writing style, but why are you not a Rogak sock puppet?

  20. Anyone but Alden says:

    Oh, btw Rogak/Sponge, did you not notice that everything Cassandra/The Zuppa has been railing against, starting years ago, is now coming true before our eyes?

    Which makes The Zuppa (TM) more a sage than a charlatan.

  21. Anyone but Alden says:

    “Back to your AmeriKKKa rants Zuppa? Now with a sock puppet “Wish I’d said that”?

    Maybe you really believe you didn’t say it, kinda like Norman Bates’ mom at the ending of “Pscyho””

    Comparing Zuppa to a serial killer now? An attorney in good standing with the bar and on very good terms with numerous defense counsel and judges is like a serial killer?

    Aside from your personal attacks on Zuppa, who was not responsible for my post in the first instance, I note that you failed to attempt to substantively argue contrary to even a single point I made.

    Which suggests your personal attacks against Zuppa are hateful and sadistic.

  22. ray zuppa says:


    Your comments contained the most substantive facts. A law. Nazi like provisions of that law. And a Court injunction. All very easy to verify for those that do not watch Fox all day.

    Now let me get radical. If a law allows you to deny speedy arraignment; speedy indictment; and speedy trial time to an American Citizen based upon the classification of that individual as a terrorist — then we no longer have any resemblance of a democracy.

    This nation with its constitution was created to provide the above so that we would not have what we had as a colony. The British could take someone. Lock them up. And leave them there with no formal charges and no due process.

    That ends dissent. It ends free speech. You can have a political enemy list — say Bill Maher or Rush Limbaugh. Lock them up and say nothing.

    They can come for me or you Sponge Bob Square Badge.

    Guilt by mere accusation. McCarthy. “Good Night and Good Luck.”

    If that’s what we have I believe everyone had better act according to their Second Amendment rights — great lobby and lots of money so that right is stronger then ever.

    “And remember the roots of liberty should be refreshed by new blood every so often” [T.J.]

    And nothing I said was radical. Its the law.

  23. Station to Station says:

    The Atlantic reported today that we are more likely to be killed by our furniture than by terrorism. This is what we shredded our Constitution for? An indefinite detention without due process “law” for this? Of course, such a power is subsumed within the President’s power to kill American citizens far from any battlefield with due process purportedly being satisfied by secret death panels. Obama has claimed the ultimate power that illustrates we are no longer a Nation ruled by law. In fact, since Obama has already executed a citizen in this fashion, the precedent has already been set.

    As a bright spot of hope, the New York Fed judge who ordered the NDAA injunction reinforced the injunction yesterday, and rejected the the DOJ’s/Obama’s motion to reargue. Amazingly, the DOJ in its motion characterized the initial ruling on the injunction as “remarkable” given we are purportedly at a time of (never ending) war. A restraint on fascism is “remarkable” to Obama’s DOJ.

    All for something that is less dangerous than furniture.

  24. ray zuppa a.ka. Captain America says:

    I am heartened by the presence of folks like Anon, Alden, and Lundgren.

    Folks you are the Americans. The true Americans. You understand what it is to be American. As set forth by the founding fathers and carried through a civil war and a war against pure evil — the NAZIs — there was never a better place.

    You are the defenders of democracy now.

    You defend it against ignorance, hatred, and the very Storm Trooper Gestapo like doctrine that we defeated on the field of battle and as the arsenal of democracy.

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