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The conclusory statement of non receipt will not non-suit a 45-day caseNovember 26, 2014

Easy Care Acupuncture PC v MVAIC, 2014 NY Slip Op 51645(U)(App. Term 1st Dept. 2014)

“The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. The vague and conclusory assertion by defendant MVAIC’s claim representative that defendant “was not aware of plaintiff’s bills” prior to the commencement of the action was insufficient, on this record, to make a prima facie showing that plaintiff’s claims were untimely submitted beyond the applicable 45-day time limit (see 11 NYCRR 65-1.1[d]; cf. NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [2007]). Conspicuously absent from the claim’s representative’s moving affidavit was any indication that she or a colleague searched the assignor’s file — said to be under the affiant’s “custody and control” — to ascertain whether plaintiff’s bills and claims had been logged in by defendant as received.”

Like any other defense that germinates from a “non-receipt” of a item, the Courts have uniformly held that some type of search was made prior coming to the conclusion that an item was not received.  The search does not need to be exhaustive (a prior case from the second department dispelled this notion), but the search must be somewhat detailed.  Here, all that was presented was a boilerplate I did not receive the billing.  That is not enough to win in this Court.

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