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ChutzpahAugust 24, 2015

Great Health Care Chiropractic, P.C. v Elrac, Inc., 2015 NY Slip Op 51223(U)(App. Term 2d Dept. 2015)

(1) “Defendant alleged in its cross motion that it had first received notice of the accident on July 7, 2010 from plaintiff’s assignor’s attorney, and that this was more than 30 days after the date of the accident, which had occurred on June 6, 2010. In opposition to defendant’s cross motion, plaintiff submitted an affidavit by Jean Claude Compas, who stated that he had personally timely mailed, by certified mail, an NF-2 application for no-fault benefits together with a notice of injury to defendant on July 6, 2010. He alleged, with regard to mailing, that he personally takes all envelopes in the office to the post office and presents them to the clerk to be weighed and to determine the correct postage, and that he purchases the postage at that point. Plaintiff also submitted a “Track & Confirm” search result indicating that the envelope had been delivered to defendant, but did not submit the certified mail receipt indicating the date on which the envelope had been brought to the post office

(2) “in further support of its cross motion, defendant submitted a photocopy of the envelope bearing a certified mail number which matches the certified mail number alleged by Dr. Compas to be the certified mail number under which the NF-2 and notice of injury had been mailed. Both the postage and the postmark are dated July 7, 2010.”

(3)  “In its brief, plaintiff concedes “the fact that the envelope was postmarked by the Post Office on July 7,” but argues that it was mailed on July 6, 2010. However, this is not a case where a mailing was timely because the envelope was timely dropped into a mail box, even though it was not delivered to the post office and postmarked until a date beyond the prescribed time period (seeCPLR 2103 [b] [2]; [f] [1]; Kresch v Saul, 29 AD3d 863 [2006]). Rather, plaintiff’s own affidavit establishes that the NF-2 and notice of injury were delivered directly to a clerk at the post office for postage and mailing. Both the postage and the postmark are dated July 7, 2010, conclusively establishing that the documents were not mailed until that date. Therefore, they were not submitted to defendant within the time frame required by 11 NYCRR 65-2.4 (b).”

You see, they read the briefs.  Plaintiff should have written in his brief: “I know I have a problem but I do not have the courage to admit this is a loser and I should away”.  At least on this case (unlike the verification non-receipt cases), the court had the courage to call out chicanery.

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