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Mailing and denial issuesOctober 28, 2014

Urban Well Acupuncture, P.C. v American Commerce Ins. Co., 2014 NY Slip Op 51520(U)

“The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal since defendant “failed to . . . establish that the denial of claim form was in fact mailed to the plaintiff” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564-565 [2005]; see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011]). The affidavit submitted by the defendant insurer to establish proof of mailing – identifying the affiant as a “mailroom representative” of a nonparty to this action, State-Wide Insurance Company (“State-Wide”) – neither stated that the affiant actually mailed the claim denial to plaintiff nor, so far as appears, described defendant’s mailing office practice and procedures (see New York and Presbyterian Hospital v Allstate Ins. Co., 29 AD3d 547 [2006]), as opposed to those generally followed by State-Wide. Conspicuously absent from defendant’s moving submission was any allegation or showing that a jural relationship existed between defendant and State-Wide. Given these shortcomings in defendant’s proof, we have no occasion to consider whether defendant’s purported mailing of the claim denial to the individual treating acupuncturist rather than the employing professional corporation was proper (see 11 NYCRR 65-3.8[c])”

Nyack v. Metropolitan is best known as one of the first defective denial cases.  There is a line in this case (nobody paid attention to it) stating that an affidavit of mailing to the plaintiff was not presented.  I guess somebody forgot to link “state wide” and “american commerce” in the mailing affidavit.  It happens, and I am sure this mistake will not happen again.

I like how the court ducked the main issue here: Can a denial be sent to the treating acupuncturist as opposed to the P.C.  If the court follows Judge Ciaffa’s agency theory case and pertinent precedent regarding the duty to communicate, then the answer to the question should be an unconditional “yes”.

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