Mailing from the Court of Appeals – kind of important

Preferred Mut. Ins. Co. v Donnelly, 2014 NY Slip Op 02328 (2014)

I am going to say that this is a much less restrictive test than what was set up in the 1979 decision of Nassau v. Murray.  The pertinent portion of the Fourth Department case that was affirmed is cited below.  Does your mailing affidavit hit these key points?

“The Appellate Division correctly determined that the plaintiff-insurer presented sufficient evidence of a regular office practice to ensure the proper mailing of notifications to insureds so as to raise the presumption that such a notification was mailed to and received by the insured. Specifically, the plaintiff-insurer submitted an affidavit from an employee who had personal knowledge of the practices utilized by the insurer at the time of the alleged mailing to ensure the accuracy of addresses, as well as office procedures relating to the delivery of mail to the post office. Thus, the plaintiff-insurer provided proper notice of the amendment to the policy upon renewal adding the relevant exclusion. Defendant’s remaining contentions are without merit. ”

This was what was affirmed at 111 AD3d 1242 (4th Dept. 2013):

“Specifically, the evidence established the procedure used by plaintiff for generating notices whenever an insurance policy was amended, and the documentary evidence established that a notice was generated for Donnelly’s policy during the year in which the lead exclusion was added to the policy. In addition, plaintiff submitted evidence that it placed the notices in envelopes with windows so that the address on the notice was the one used for mailing.  The envelopes were then delivered to the mail room, where they were sealed and the appropriate postage was added. Thereafter, the mail was hand delivered to the post office that was located adjacent to plaintiff’s parking lot.

While we agree with the dissent that there was no evidence submitted of a practice to ensure that the number of envelopes delivered to the mail room corresponded to the number of envelopes delivered to the post office (see Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227, 228-229 [1995]Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375 [1987]cf. Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656 [1994]), we do not deem the absence of such evidence fatal to plaintiff’s motion in light of the detailed description of all of the other office practices geared toward ensuring the likelihood that the notices were always properly addressed and mailed

My observation is that the Court of Appeals probably required less than what the Fourth Department required.  Does your affidavit recite how and when the document is generated and that the address has an indicia of accuracy?  Does your affidavit discuss the placement of the documents into envelopes and the placement of postage?  Does your affidavit discuss the trip to the mail room and, later, the trip to the post office?

 

Mailing challenge unpreserved

Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 2014 NY Slip Op 50411(U)(App. Term 2d Dept. 2014)

The court would not reach the timeliness issue since it was first raised at appeal: “On appeal, plaintiff argues that the affidavits submitted by defendant failed to establish that defendant’s employees possessed sufficient personal knowledge to demonstrate that defendant’s denial of claim form had been timely mailed. This argument is improperly raised for the first time on appeal.”

No personal knowledge of the practice and procedure to mail the suspension notice results in vacatur of conviction

People v Francis, 2014 NY Slip Op 00682 (2d Dept. 2014)

In order to support a conviction of aggravated unlicensed operation of a motor vehicle in the third degree, the People must establish that the defendant knew or had reason to know that his or her driving privilege had been revoked, suspended, or otherwise withdrawn by the Commissioner of Motor Vehicles.

Here, the evidence was legally insufficient to prove that the defendant knew or had reason to know that her license had been suspended. The testimony on behalf of the People, given by an employee from the Kings County [*2]office of the New York State Department of Motor Vehicles (hereinafter the DMV), revealed that the employee had no personal knowledge of the procedures utilized by the Albany DMV office, which handled the mailing of the notices of impending and actual suspension of the defendant’s license. Consequently, the People failed to present sufficient proof regarding the standard practice and procedure of the Albany DMV office that were designed to ensure that the suspension orders were properly addressed and mailed, did not establish that the suspension orders were mailed to the defendant, and, thus, failed to prove that the defendant knew, or had reason to know, that her license had been suspended”

Claims documents considered as business records and unsuccessful mailing challenge

Preferred Mut. Ins. Co. v Donnelly, 2013 NY Slip Op 07283 (4th Dept. 2013)

(1) CPLR 4518 (a) challenge:

“We conclude that plaintiff met its initial burden of establishing that the lead exclusion was properly added to the policy and that notice of the lead exclusion amendment was provided to Donnelly. Contrary to Jackson’s contention, plaintiff submitted evidence in admissible form to support its motion. Although many of the documents appended to the attorney affirmation were not in admissible form (see KOI Med. Acupuncture v State Farm Ins. Co., 16 Misc 3d 1135[A], 2007 NY Slip Op 51705[U], *2; see generally CPLR 4518 [a]), we conclude that the affidavit from plaintiff’s Office Services Supervisor was sufficient to lay a proper foundation for the business records attached thereto (see CPLR 4518 [a]; cf. Unifund CCR Partners v [*2]Youngman, 89 AD3d 1377, 1378, lv denied19 NY3d 803; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331; see generally People v Kennedy, 68 NY2d 569, 579-580).”

(2) Mailing challenge:

This is interesting and should find its way in motions where mailing is challenged.  Perhaps another dilution in the “art” of mailing litigation, and I would argue a significant lowering of the mailing hurdle

“With respect to the substance of the attachments, we conclude that the documents established as a matter of law that the lead exclusion was properly added to Donnelly’s insurance policy and that Donnelly was notified of that amendment. Although plaintiff did not submit evidence that the notice of the amendment was mailed to Donnelly and Donnelly could not recall receiving the notice, plaintiff submitted evidence in admissible form “of a standard office practice or procedure designed to ensure that items are properly addressed and mailed,” thereby giving rise to a presumption that Donnelly received the notice (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680; see Nocella v Fort Dearborn Life Ins. Co. of N.Y., 99 AD3d 877, 878). Contrary to the contention of Jackson, the evidence submitted by plaintiff established that the “office practice [was] geared so as to ensure the likelihood that [the] notice[s of amendment] . . . [were] always properly addressed and mailed” (Nassau Ins. Co. v Murray, 46 NY2d 828, 830; see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 229-230; cf. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375). Specifically, the evidence established the procedure used by plaintiff for generating notices whenever an insurance policy was amended, and the documentary evidence established that a notice was generated for Donnelly’s policy during the year in which the lead exclusion was added to the policy. In addition, plaintiff submitted evidence that it placed the notices in envelopes with windows so that the address on the notice was the one used for mailing. The envelopes were then delivered to the mail room, where they were sealed and the appropriate postage was added. Thereafter, the mail was hand delivered to the post office that was located adjacent to plaintiff’s parking lot.”

“While we agree with the dissent that there was no evidence submitted of a practice to ensure that the number of envelopes delivered to the mail room corresponded to the number of envelopes delivered to the post office (see Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227, 228-229; Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375; cf. Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656), we do not deem the absence of such evidence fatal to plaintiff’s motion in light of the detailed description of all of the other office practices geared toward ensuring the likelihood that the notices were always properly addressed and mailed (cf. Hospital for Joint Diseases, 284 AD2d at 375; L.Z.R. Raphaely Galleries v Lumbermens Mut. Cas. Co., 191 AD2d 680, 681-682; Lumbermens Mut. Cas. Co., 135 AD2d at 374-375). Additionally, “[a]s long as there is adequate [evidence from] one with personal knowledge of the regular course of business, it is not necessary to solicit testimony from the actual employee in charge of the mailing” (Lumbermens Mut. Cas. Co., 135 AD2d at 375). Here, plaintiff submitted evidence from someone with personal knowledge concerning the specific procedures used by plaintiff to ensure that the addresses on the envelopes were accurate and concerning the “office procedures relating to the delivery of mail to the post office” (id.). In opposition to the motion, Jackson failed to raise a triable issue of fact “that [the] routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed” (Nassau Ins. Co., 46 NY2d at 830).”

 

The usual mailing and other arguments have fallen on deaf ears (again)

Quality Psychological Servs., P.C. v Hartford Ins. Co., 2013 NY Slip Op 50045(U)(Civ. Ct. Kings Co, 2013)

This is an interesting case because counsel for Quality Psychological who is prolific at noting defects (both real and imaginary  in EUO and IME scheduling letters was told by a judge in Kings that she did not want to hear about the minutia of when a letter is generated, to the size of the envelope, to the dimensions of he mail basket and to the route that is taken to get to the post office.  I mean Judge Thompson in this case and GBI Acupuncture seems to be at her wits end with with the chicanery that no-fault devolved into over the last 10 years.

You can take a lot from this opinion and perhaps you should take a glance at it when you have a free moment.   One of the arguments that arises is whether someone is under an obligation to produce a certified mail receipt when a parcel is sent via certified mail and a foundation for standard common law mailing has been laid?  The answer is no…
“Although this irrefutable proof has been produced by the Defendant, the Plaintiff argues that the lack of the certified mail receipt is fatal to the Defendant’s case. This contention is without merit. The lack of the certified mail receipts is insignificant in this case. The certified mail receipts are superflorous and the court will not infer any negative inference from their absence; the Defendant, through irrefutable admissible evidence in the above affidavits and supporting documents, established proper and timely mailing of the EUO notices and the denials.”

The United States Postal Service at the Appellate Term (again?)

Vista Surgical Supplies, Inc. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51056(U)(App. Term 2d Dept. 2012)

Prima facie case of mailing not satisfied.

“Significantly, the certified mail receipt did not contain amounts for postage and fees, and did not have a clerk identification and date, and the return receipt was not signed by a recipient and did not indicate a date of delivery. Defendant’s witness testified that defendant had not received the claim form in question until after the commencement of the action, some three years after the purported mailing”

How come Ms. Provider did not produce the person who mailed the bill or someone who could testify to the presumption of mailing?  This rule applies to certified mailing in addition to regular mailing.  Unfortunately, judges think that if something is mailed “certified mail”, the regular rules of mail litigation do not apply.  Certified mail offers a third alternative, i.e., proof of receipt, when the affiant provides proof that the cert number on the receipt matches that with the green card.  This is independent of proof of actual mailing or presumptive proof of mailing.

So, I believe the Court might have gotten this one wrong.  SeeMid City Constr. Co., Inc. v Sirius Am. Ins. Co. 70 A.D.3d 789 (2d Dept. 2006).  Now, if the court credited the defense testimony and discredited Ms. Management Company’s testimony, then I would concur with the Appellate Term.

How do you overcome the presumption of mailing?

The Appellate Term has given us a little more guidance since Pomona v. Travelers came out last year.  However, Comprehensive Neurological did not meet the test on this case.

Comprehensive Neurological Servs., PA v Tri-State Consumer Ins. Co., 2012 NY Slip Op 50950(U)(App. Term 2d Dept. 2012)

“The affidavit of plaintiff’s medical billing supervisor, while explaining in general terms the office procedure followed by plaintiff in “document[ing] receipt of [verification] request[s] into our computer system,” failed to set forth any facts tending to indicate that the affiant or anyone else in plaintiff’s billing department in fact checked the “computer system” to ascertain whether the verification letters shown to have been sent by defendant had been “documented” as received. The professed status of plaintiff’s affiant as “custodian” of the case file was insufficient, on this record and without more, to overcome the presumption of receipt created by defendant’s proof of proper mailing of its verification letters”

In trying to put this all together, there are a few trends that are evident.  An affidavit of mailing does not need to recite the dates something is dispatched.  A recitation of someone who knows the office procedure and generally describes it can aver that something is mailed on the date set forth on the dated correspondence or some subsequent business day will meet the burden.   Added fluff in the affidavit is always welcome, but too much fluff will spawn inconsistencies and cause the affidavit to lead to complete defeat.  Point of Health Acupuncture, P.C. v GEICO Ins. Co., 2010 NY Slip Op 51724(U)(App. Term 2d Dept. 2010)

An affidavit attempting to defeat the presumption of mailing has to be bill, event and document sufficient.  The best discussion of this was found recently in a case I cited on here: Matter of Matter of Government Empls. Ins. Co. v Morris, 2012 NY Slip Op 03448 (2d Dept. 2012).

A double standard?  I know someone is going to exclaim that this a conspiracy of the courts.  I await Zuppa’s analysis.

Mailing not proven through witness that was not present when items was deposited into the trusty USPS

Exclusive Physical Therapy, P.C. v MVAIC,  2012 NY Slip Op 50862(U)(App. Term 2d Dept. 2012)

“We note that, in his affidavit, defendant’s claims representative stated that he had begun working for defendant after the denial of claim forms at issue had allegedly been mailed by defendant. Consequently, defendant failed to show that its denial of claim forms had been timely mailed”

I suspect one cannot travel in time capsule to learn how the process used to be.  Logical.

Mailing case – sent but never received

Matter of Matter of Government Empls. Ins. Co. v Morris, 2012 NY Slip Op 03448 (2d Dept. 2012).

I would seriously take notice of this case.  This is probably the standard to prove non-receipt, both in a traverse setting and in the usual mailing battles that no-fault fosters.

“As a general rule of evidence, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Matter of Rodriguez v Wing, 251 AD2d 335, 336 [internal quotation marks omitted]). Here, the appellant adduced evidence at the hearing that gave rise to a rebuttable presumption that the November 3, 2009, letter was duly received by GEICO (see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229). However, GEICO rebutted this presumption by presenting evidence demonstrating its “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525; see Electronic Servs. Intl. v Silvers, 233 AD2d 361). In addition, to the extent that the conclusion of the Supreme Court was based upon credibility determinations, such determinations are entitled to deference on appeal (see Matter of Allstate Ins. Co. v Albino, 16 AD3d 682, 683; Contarino v North Shore Univ. Hosp. at Glen Cove, 13 AD3d 571).”

er of Government Empls. Ins. Co. v Morris
2012 NY Slip Op 03448

Mailing discrepencies and the way to prove non-receipt

Vincent Med. Servs., P.C. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 50431(U)(App. Term 2d Dept. 2012).

“the affidavit of plaintiff’s billing manager stated that he had personally mailed the claim to defendant on June 15, 2006. However, we note that plaintiff’s claim form is dated June 22, 2006 and seeks to recover for services rendered to the assignor after June 15, 2006. In opposition to plaintiff’s motion and in support of the branch of its cross motion seeking summary judgment dismissing the fifth cause of action insofar as it pertained to this claim, the affidavit of defendant’s examiner contained a detailed recitation of defendant’s office practices and procedures pertaining to its receipt, filing and/or storage of claim forms, which was sufficient to show that defendant had never received the $608.40 claim form from plaintiff.”