The verification affidavits again

Great Health Care Chiropractic, P.C. v Hereford Ins. Co., 2016 NY Slip Op 50910(U)(App. Term 2d Dept. 2016)

“In support of the cross motion, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).”

No further comment.

Enough with the Rybak verification affidavit

Great Health Care Chiropractic, P.C. v Hereford Ins. Co., 2016 NY Slip Op 50858(U)(App. Term 2d Dept. 2016)

This is my plea to those at the Appellate Term who read this blog.  You seriously need to stop finding triable issues of fact on verification cases because: “However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant”

I would think if the law requires a party to tender their proof (one way or another) in support of or in opposition to a motion for summary judgment, then that proof should be tendered.  If verification requested is a photo of a sunset over the Atlantic ocean and the affidavit says it was “mailed”, what should be annexed as an exhibit?  A photo of the sunset over the Atlantic ocean.

But aside from trying to get the Appellate Term to hear reason, I put the blame on this predicament on the carriers.  Why?  Nobody seeks leave to the Appellate Division.  A well support leave application would be granted.  What is a well supported leave application?  It is EVERY case that this has come up (we are at 100 now).  A copy of the “affidavit” of compliance and a statement that this is used in every verification case will probably cause the App. Div. to look into these cases.

While I try to solve these proof problems at the Appellate Division, this will surprise you to know that all of my Rybak verification cases have settled or have been resolved.  My hands are tired, otherwise I would have been on top of this awhile ago.

FYI – my next issue is rocket docket, 2106 (again) and collateral estoppel of PIP awards on UM cases and Thrasher.  I have a busy Appellate Division calendar on top of running a business.

 

The Rybak verification affidavit strikes again

Compas Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51776(U)(App. Term 2d Dept. 2015)

“However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this cause of action is premature”

Let’s ask the scrivener of the Compas affidavit: (1) Where is the requested verification because it was not in the papers; (2) The affidavit never stated the date the verification responses were mailed because they never were mailed. Alas, the Appellate Term screwed up again.

Delay letters v. verification requests

New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 2015 NY Slip Op 51706(U)(App. Term 2d Dept. 2015)

“A review of defendant’s letters reveals that they merely notified plaintiff that defendant was delaying payment, but they did not request any specific verification. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny the claims at issue (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists [2010]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant failed to establish, as a matter of law, that it is not precluded from raising its proffered defense that the fees sought exceeded the amount permitted by the workers’ compensation fee schedule (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).”

This tests the classic delay letter v. verification letter distinction.

Another less than valid verification compliance affidavit suffices

Compas Med., P.C. v Praetorian Ins. Co.,2015 NY Slip Op 51699(U)(App. Term 2d Dept. 2015)

However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this cause of action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

I read the affidavit.  There is nothing except boilerplate about submitting verification responses to the carrier.  Noteworthy, there is nothing provided showing wen the verification was mailed and what was mailed.  Why?  It never happened.  I would hope after seeing the same affidavit, this Court would wake up and ask themselves why they are reversing close to 100 matters where judges found the plaintiff affidavit to be deficient.  One day someone on the 15th floor will get it.

Do you really believe that the verification was mailed? I don’t

New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51678(U)(App. Term 2d Dept. 2015)

“In support of the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s second cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s employee, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant

A verification non receipt decision that does not make sense.

New Way Med. Supply Corp. v Praetorian Ins. Co., 2015 NY Slip Op 51632(U)(App. Term 2d Dept. 2015)

“However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether these causes of action are premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).”

This was my file.  The affidavit never states WHAT was mailed and WHEN it was mailed.  The “exhibits” attached include a prescription and confirmation receipt.  The verification sought: An invoice for the DME and contemporaneous medical records.  None of these were provided, nor was an excuse provide for their non-existence.  Also the affiant, Inna Tkachenko is the “billing manager”, not the owner. Yet, Rybak raised an issue of fact?  Glad to see somebody reversed an order and DID NOT read the papers.  IMHO, the law clerk that writes these decisions  needs to really look at these papers a bit more carefully.  Not a good day for our judiciary.

 

 

EUO & IME no show

Compas Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51467(U)(App. Term 2d Dept. 2015)

“The Civil Court denied plaintiff’s motion, granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action as premature because plaintiff had failed to provide requested verification, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the remaining causes of action due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).

In support of the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated prima facie that it had not received the requested verification and thus that plaintiff’s third cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). As plaintiff failed to raise a triable issue of fact, the Civil Court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing this cause of action.”

My case.  Thank you.  On this one, there was no affidavit attempting to explain the verification compliance.

Additional verification not produced is probative of nothing

Compas Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51403(U)(App. Term 2d Dept. 2015)

“In support of the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s fifth cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s fifth cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492[2005]). As plaintiff failed to raise a triable issue of act, the Civil Court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing this cause of action.

Contrary to plaintiff’s contention, defendant established that the independent medical examination (IME) and examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims underlying the first, third and fourth causes of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (Stephen Fogel[*2]Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing these causes of action.”

The same caveat holds true as before.  The affidavit that promises responses to verification without the actual verification is insufficient to raise an issue of fact.  My case.  Thank you.

EUO no-show and verification non-receipt

Compas Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51408(U)(App. Term 2d Dept. 2015)

“In support of the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated prima facie that it had not received the requested verification and thus that plaintiff’s second cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). As plaintiff failed to raise a triable issue of fact, the Civil Court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing this cause of action.

Contrary to plaintiff’s contention, defendant established that the IME and EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123;Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16), that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta [*2]Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims underlying the remaining causes of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing the remaining causes of action.”

This case is interesting because the famous Rybak affidavit alleges compliance with verification.  This case was no different.  Yet, the Court appears to have finally woken up and have said that the affidavit must be corroborated with proof showing that verification was complied with.  My case.  Thank you.