Mortgage cases are now leading the charge on mailing issues

HSBC Bank USA v Rice, 2017 NY Slip Op 07936 (1st Dept. 2017)

“In the affidavit, the loan servicer’s vice president of loan documentation fails to demonstrate a familiarity with the servicer’s mailing practices and procedures. Therefore, plaintiff did not establish proof of a standard office practice and procedure (see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890 [2d Dept 2017]; Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049 [2d Dept 2017]). Moreover, portions of the receipt in the record are blank, and an undated and unsigned return receipt is not [*2]sufficient to establish proof of the actual mailing”

It was not mailed

Exultant Med. Diagnostics, P.C. v American Commerce Ins. Co., 2017 NY Slip Op 50496(U)(App. Term 2d Dept. 2017)

Jesus.  I get it, it is a volume business and we all make mistakes.  I am raising my hand here.  Guilty as charged.  Saw two on my desk.  We had a group discussion and it will not happen again.  What did we not do?  Appeal.

But now you appealed a sloppy loss?  And how come the carrier has not filed a malpractice lawsuit for this among others?

“Upon a review of the record, we find that defendant failed to establish that the denial of claim forms, which denied plaintiff’s claims on the ground of lack of medical necessity, had been properly and timely mailed. The affidavit of defendant’s claims adjuster did not state how defendant obtains the mailing address for the denial of claim forms, so as to ensure that the address is correct, or that the envelopes are affixed with postage”

Notice of intent to cancel – premium finance company

Island Life Chiropractic, P.C. v Country Wide Ins. Co., 2016 NY Slip Op 51378(U)(App. Term 2d Dept. 2016)

“While the affidavit of defendant’s no-fault litigation supervisor described defendant’s mailing practices and procedures with respect to claims processing, it did not describe the process involved where other correspondence, such as a notice of cancellation, is mailed. As a result, defendant failed to establish, prima facie, that the notice of cancellation had been mailed to the insured in order to effectuate the cancellation (see generally Vehicle and Traffic Law § 313; Banking Law § 576).”

The affidavit needed to extend the process to notices of  cancellation (in addition to form NF-10)

Allstate mailing issues

I am unsure what has changed at Allstate but there seems to be an issue proving anything is timely, properly or even close to mailed

Cpm Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 2016 NY Slip Op 51377(U)(App. Term 2d Dept. 2016)

Synergy First Med., P.L.L.C. v Allstate Ins. Co., 2016 NY Slip Op 51365(U)(App. Term 2d Dept. 2016)

K.O. Med., P.C. v Allstate Ins. Co., 2016 NY Slip Op 51367(U)(App. Term 2d Dept. 2016)

Ultimate Health Prods., Inc. v Allstate Ins. Co.. 2016 NY Slip Op 51353(U)(App. Term 2d Dept. 2016)

Compas Med., P.C. v Allstate Ins. Co., 2016 NY Slip Op 51356(U)(App. Term 2d Dept. 2016)
Renelique v Allstate Ins. Co., 2016 NY Slip Op 51357(U)(App. Term 2d Dept. 2016)

Allstate EUO no-show cases

New Quality Med., P.C. v Allstate Ins. Co., 2016 NY Slip Op 50871(U)(App. Term 2d Dept. 2016)

Defendant’s contention that its cross motion for summary judgment should have been granted due to plaintiff’s failure to appear for duly scheduled EUOs lacks merit, as the Civil Court correctly found that defendant had failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Since defendant failed to raise a triable issue of fact as to whether it had timely denied plaintiff’s claims (see 11 NYCRR 65-3.8 [a]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s contention that its papers were sufficient, at least, to raise a triable issue of fact as to whether plaintiff had failed to appear for the scheduled EUOs is irrelevant.

I have heard about the split in the courts regarding the Allstate mailing affidavit.  Does this represent that?

 

 

Maya cannot prove anything is mailed

Great Health Care Chiropractic, P.C. v Maya Assur. Co., 2016 NY Slip Op 50308(U)(App. Term 2d Dept 2016)

Gl Acupuncture, P.C. v Maya Assur. Co., 2016 NY Slip Op 50310(U)(App. Term 2d Dept. 2016)

Atlantic Radiology, P.C. v Maya Assur. Co., 2016 NY Slip Op 50316(U)(App. Term 2d Dept. 2016)

“Although the claims adjuster stated that, in May 2012, she had personally generated the denial of claim form and placed it in an envelope, affixed proper postage and placed the envelope in an outgoing mailbox, she also stated that she began working for defendant as a claims adjuster in July 2012. Consequently, her affidavit was of no probative value (see Points of Health Acupuncture, P.C. v GEICO Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52445[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).”

 

Trial de novo summary judgment motion appealed

AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 2016 NY Slip Op 00916 (2d Dept. 2016)

The reason I appealed

“Contrary to the Supreme Court’s determination, the affidavit of the plaintiff’s branch manager, submitted by the plaintiff in support of its motion for summary judgment, was sufficient to establish, prima facie, that its denial of claim forms were timely mailed in accordance with the plaintiff’s standard and appropriate office mailing practices and procedures (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169; cf. Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051). In opposition, the defendant failed to raise a triable issue of fact as to the timeliness of the denial of claim.”

Triable issue of fact – medical necessity

The medical necessity issue (first tine the Appellate Division, Second Department actually dealt with a Pan Chiro issue)

“Furthermore, with respect to the medical necessity of the services provided by the defendant, the plaintiff submitted affirmed medical evaluations which made a prima facie showing [*2]that the services at issue were not medically necessary (see Gaetane Physical Therapy, P.C. v Great N. Ins. Co., 47 Misc 3d 145[A], 2015 NY Slip Op 50698[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Dr. Todd Goldman, D.C., P.C. v Kemper Cas. Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51713[U] [App Term, 2d Dept, 11th & 13th Jud Dists]).

However, in opposition to the motion, the defendants submitted affidavits and various medical records relating to Coyotl’s treatment which were sufficient to raise a triable issue of fact as to the necessity of that treatment (see Westcan Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Lenox Hill Radiology & Mia, P.C. v Great N. Ins. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50680[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Fine Healing Acupuncture, P.C. v Country-Wide Ins. Co., 33 Misc 3d 55 [App Term, 2d Dept]).

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment, as further proceedings are necessary to determine the issue of the medical necessity of the treatment rendered to Coyotl.”

Partial summary judgment

“[f]urther proceedings are necessary to determine the issue of the medical necessity of the treatment rendered to Coyotl.”

I do not think I should have had costs awarded against me.  I accomplished what needed to get done.

 

 

Make a promise in your papers and fail to keep it? Summary judgment lost

Bay LS Med. Supplies, Inc. v Allstate Ins. Co., 2015 NY Slip Op 51625(U)(App. Term 2d Dept. 2015)

“In support of its cross motion, defendant submitted an affidavit by its special investigator which set forth defendant’s standard mailing practices and procedures by which he had mailed the denial of claim form at issue to plaintiff. Although the affiant stated that, annexed as an exhibit, was a copy of the certified mail, return receipt card bearing the claim number in question, which reflected that plaintiff had signed for the envelope which, in accordance with the affiant’s standard office practice and procedure, contained the denial of claim form in question, the documents attached to defendant’s motion pertained to a different assignor. As a result, defendant failed to establish that it had properly mailed its denial of claim form to plaintiff”

Non-Receipt and medical necessity

Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co., 2015 NY Slip Op 50565(U)

(1) “We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the orthopedic surgery underlying plaintiff’s first-party no-fault claim in the sum of $3,408.11. However, defendant made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claim in the sum of $212.37, by the affidavit of its claims adjuster demonstrating that plaintiff submitted the claim beyond the 45-day time limit for submission of claims”

(2) “The affidavit of plaintiff’s office manager did not allege a personal mailing of the claim within the 45-day period or describe plaintiff’s regular office mailing practice and procedure”

It is always interesting watching the “mailing v. non-receipt” battles.

 

Mailing again

Healthy Way Acupuncture, P.C. v One Beacon Ins. Co., 2015 NY Slip Op 50537(U)(App. Term 1st Dept. 2015)

This time, the Court does not focus so much on the jural relationship between the parties, but the court is focusing on when the person commenced employment with the entity at issue.

“The affidavit submitted by defendant to establish proof of mailing, identifying the affiant as an employee of nonparty Tower Insurance Group (“Tower”), an entity remotely related to defendant, lacked probative value, since it failed to set forth the basis of affiant’s personal knowledge of the internal mailing practices and procedures of defendant during the pertinent period (see Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 253-254 [2011]), especially given that affiant began his employment with Tower after the denial at issue was allegedly mailed by defendant”