Mailing – CPLR 4518(a)

Bank of Am., N.A. v Wheatley, 2018 NY Slip Op 01175 (2d Dept. 2018)

“The plaintiff failed to make the requisite showing. In support of its motion, the plaintiff submitted the affidavit of Sherry Benight, an officer of Select Portfolio Servicing, Inc. (hereinafter SPS), the loan servicer, along with two copies of a 90-day notice addressed to the defendant and a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. While mailing may be proved by documents meeting the requirements of the “business records exception” to the hearsay rule, Benight, in her affidavit, did not aver that she was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed”

I have to imagine this would be a mailing ledger or some other documentary proof showing that an item was mailed?  A little different than in the no-fault scenario

 

Arizona and ATIC

Arizona Premium Fin. Co., Inc. v American Tr. Ins. Co., 2017 NY Slip Op 09263 (!st Dept, 2017)

I spent a few hours earlier this year reading the case file on this one.  For starters, ATIC’s attorney at the deposition of the ATIC defendants violated the new rules in spirit and substance.  I would have flipped out if I were Arizona’s attorney.

While an attorney at a deposition should not be a potted plant, they should not be actively interfering with the questioning.  Substantively, the case involved claims of notices of cancellation that Arizona through the POA it possessed and invoked not being received by ATIC.  Arizona  was granted summary judgment on less than half the claims (it was clearly received).  On the remainder, the mailroom gentleman ad his deposition admitted at his deposition that he would received incorrectly addressed envelopes (that was the issue of fact) requiring a jury trial on whether ATIC received the cancellations.  Just amazing.

As a plaintiff, when ATIC denies receipt, you might want to read Louis Campbell’s deposition in this case.

Allstate’s inability to prove the timely mailing of claims documents

Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co., 2017 NY Slip Op 51903(U)(App. Term 2d Dept. 2017)

Renelique v Allstate Ins. Co., 2017 NY Slip Op 51884(U)(App. Term 2d Dept. 2017)

Compas Med., P.C. v Allstate Ins. Co., 2017 NY Slip Op 51842(U)(App. Term 2d Dept. 2017)

Healing Art Acupuncture, P.C. v Allstate Ins. Co., 2017 NY Slip Op 51821(U)(App. Term 2d Dept. 2017)

Big Apple Ortho Prods., Inc. v Allstate Ins. Co., 2017 NY Slip Op 51791(U)(App. Term 2d Dept. 2017)

KHL Acupuncture, P.C. v Allstate Ins. Co., 2017 NY Slip Op 51709(U)(App. Term 2d Dept. 2017)

Charles Deng Acupuncture, P.C. v Allstate Ins. Co., 2017 NY Slip Op 51716(U)(App. Term 2d Dept. 2017)

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.