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What is personal knowledge? September 30, 2022

SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50931(U)(App. Term 2d Dept. 2022)

“In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court limited the issues for trial, in effect pursuant to CPLR 3212 (g), to whether plaintiff had failed to appear for the EUOs. The court, citing Metro 8 Med. Equip., Inc. v ELRAC, Inc. (50 Misc 3d 140[A], 2016 NY Slip Op 50174[U] [App Term, 1st Dept 2016]), found that defendant had not made a prima facie showing of plaintiff’s failure to appear for scheduled EUOs due to the amount of time between the scheduled EUOs and the date on which the affirmation was executed by the attorney who was present to conduct such EUOs, and the affiant’s failure to establish the basis for her recollection of plaintiff’s failure to appear.

Contrary to the determination of the Civil Court, the affirmation submitted by the attorney who was to conduct the scheduled EUOs was sufficient to establish that plaintiff had failed to [*2]appear. As the attorney who was to conduct such EUOs, Megan Dimicelli, Esq., stated that she was present at the location of the scheduled EUOs and that she would have conducted the EUOs if plaintiff had appeared, she possessed personal knowledge that plaintiff had failed to appear (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). To the extent the Civil Court stated that an issue existed with respect to DiMicelli’s recollection of plaintiff’s failure to appear, such a determination was not warranted, as, on its face, DiMicelli’s affirmation was not unworthy of belief (see e.g. Joseph-Felix v Hersh, — AD3d —, 2022 NY Slip Op 04905 [2d Dept 2022]; cfMetro 8 Med. Equip., Inc. v ELRAC, Inc., 2016 NY Slip Op 50174[U]). In opposition to defendant’s motion, plaintiff could have demonstrated the existence of a material issue of fact by submitting an affidavit stating that plaintiff had appeared for an EUO, but plaintiff failed to do so. As plaintiff did not otherwise challenge the implicit CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.”

It is funny – I got dinged on the Metro Health rule awhile back. But to blatantly say the person failed to appear because i said so is not necessarily a valid holding either.

The CPLR 3212(g) paradigm September 30, 2022

Wave Med. Servs., P.C. v Hertz Vehs., LLC, 2022 NY Slip Op 50908(U)(App. Term 2d Dept. 2022_

The Civil Court’s language could also lend itself to the interpretation that the record established, as incontrovertible for all purposes in the action, that plaintiff had mailed the claim forms to defendant. This reading is also problematic. “[P]roof of proper mailing gives rise to a presumption that the item was received by the addressee” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). However, that presumption is rebuttable. A rebuttal of the presumption of receipt can also constitute a rebuttal of the proof of mailing—while it can be true both that a provider mailed a claim form to an insurer and that the insurer did not receive it, on a motion for summary judgment, proof of nonreceipt calls into question whether the claim forms were ever mailed in the first instance (see Parisien v Travelers Ins. Co., 65 Misc 3d 154[A], 2019 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Irina Acupuncture, P.C. v Auto One Ins. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50781[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59, 61 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). A proposition cannot be both rebuttable and incontrovertible at the same [*3]time. Thus, on this record, the court’s apparent determination that there is a triable issue of fact as to whether defendant received the claims—the basis for holding a trial—cannot be reconciled with any interpretation of the court’s order to the effect that it is incontrovertible, based upon the motion papers, that plaintiff mailed the claims.

In the alternative and in light of the above, by invoking CPLR 3212 (g) and limiting the trial to “the issues raised by [defendant] in its denials/Answer,” the Civil Court may have intended to shift to defendant the burden of proof at trial regarding receipt of the claim forms and/or require defendant to present its evidence on that issue first. However, it is not proper to use CPLR 3212 (g) to shift the burden or order of proof on an issue at trial (see Island Life Chiropractic, P.C. v Travelers Ins. Co., 64 Misc 3d 143[A], 2019 NY Slip Op 51273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 32 Misc 3d 63 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Rather, as noted, CPLR 3212 (g) is to be used, where “practicable,” only to “ascertain which facts are not in dispute or are incontrovertible,” and thereby limit the factual questions to be tried.

In view of the foregoing and upon the record presented, it was improper for the Civil Court to make CPLR 3212 (g) findings and limit the issues for trial (cf. e.g. Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).”

Oh the world is CPLR 3212(g) is quite nuanced.

Statute of Limitations: 6 years when denial is received September 30, 2022

New Millennium Med. Imaging, P.C. v GEICO, 2022 NY Slip Op 22300 (App. Term 2d Dept. 2022)

Here is an issue I have not countenanced often. When a denial is issued prior 30-days after a bill is received, does the SOL time period run from date of denial or bill + 30 days? The answer is neither. In this case, the time to commence the action would be when Applicant received the denial.

“Here, defendant mailed its denial of claim form on Monday, October 3, 2011, from Woodbury, New York, to Flushing, New York, and plaintiff commenced this action on October 6, 2017. In order to hold that the commencement of this action occurred after the statute of limitations had expired, this court would have to find that it is reasonable to presume that plaintiff received the denial of claim form by October 5, 2011—two days after it was mailed. In [*3]the circumstances presented on this record, we do not find that to be a reasonable presumption.”

You should note that CPLR 2103(b) is still applicable “[noting that the CPLR time period was extended “from three to five days in 1982 because the existing three-day (period) was seen as inadequate”]). Thus, CPLR 2103 (b) (2) may be useful as a guide to help determine the presumptive reasonable date of receipt; however, a properly-mailed item should not automatically be presumed to be received exactly five or six days thereafter. Rather, receipt can, based on the particular facts presented, be presumed to be less than five or six days (for example if it was mailed from the same zip code as the addressee’s) or greater than five or six days after mailing, depending on the factors outlined above.”

You know what? I agree with this decision.


Reasonable Justification for late submission September 25, 2022

Stand-Up MRI of the Bronx, P.C. v MVAIC Ins. Co., 2022 NY Slip Op 50789(U)(App. Term 2d Dept. 2022)

“In opposition to MVAIC’s motion, plaintiff demonstrated that it had initially sent the claims at issue to an insurance company, but after plaintiff learned that the insurance company would not cover the claims, plaintiff sent the claims to MVAIC. However, plaintiff did not establish that it had provided MVAIC with a reasonable justification as to why it had initially submitted the claims to the insurance company. As a result, plaintiff did not establish that it had provided MVAIC with a reasonable justification for its untimely submission to MVAIC of the claim forms “

Stand up left our the “Why”. Harkens back to a motion to conditionally certify a class on an FLSA case and my papers failed to satisfy (according to the Magistrate) the “why” element in my party declaration. Let this be a lesson – “why” did you sent to the wrong carrier?

It is personal knowledge again September 25, 2022

SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50775(U)(App. Term 2d Dept. 2022)

“Defendant submitted the affirmation of an attorney who stated that she was in her firm’s office on the dates on which the EUOs were scheduled, that she would have either conducted the EUO herself or assigned another attorney to do so, and that plaintiff did not appear. She was not required to state that she was present in the [*2]office at any specific time on the scheduled dates

I honestly dislike those affidavits. They read as a lazy person’s way to prove a no-show, and I tend to wonder if this practice or protocol really happens.

In the new virtual world, I think the no-show affidavits will be cleaner and more accurate.