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.