Acupuncture Approach PC v MVAIC, 2013 NY Slip Op 51676(U)(App. Term 1st Dept 2013)
“defendant’s moving submission heavily relied on an affidavit submitted by an employee of the entity retained by defendant to schedule the IMEs in this matter. The affiant, however, had no personal knowledge of the dates the IME notices were actually mailed, and described in only the most general terms her office’s mailing practices and procedures. Thus, defendant “failed to establish that the practice and procedure was designed to ensure that the [notices] were addressed to the proper party and properly mailed” (Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 ; cf. Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 ).”
What is missing from MVAIC’s affidavits? Did the affiant work at the entity when the letter was mailed? Is there some procedure in place that vendor is supposed to follow? Are the letters as a matter of practice mailed on the day of the letter or next business date? This is the 3rd time we saw this from this Court and this defendant.