Urban Well Acupuncture, P.C. v American Commerce Ins. Co., 2014 NY Slip Op 51520(U)
“The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal since defendant “failed to . . . establish that the denial of claim form was in fact mailed to the plaintiff” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564-565 ; see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 ). The affidavit submitted by the defendant insurer to establish proof of mailing – identifying the affiant as a “mailroom representative” of a nonparty to this action, State-Wide Insurance Company (“State-Wide”) – neither stated that the affiant actually mailed the claim denial to plaintiff nor, so far as appears, described defendant’s mailing office practice and procedures (see New York and Presbyterian Hospital v Allstate Ins. Co., 29 AD3d 547 ), as opposed to those generally followed by State-Wide. Conspicuously absent from defendant’s moving submission was any allegation or showing that a jural relationship existed between defendant and State-Wide. Given these shortcomings in defendant’s proof, we have no occasion to consider whether defendant’s purported mailing of the claim denial to the individual treating acupuncturist rather than the employing professional corporation was proper (see 11 NYCRR 65-3.8[c])”
Nyack v. Metropolitan is best known as one of the first defective denial cases. There is a line in this case (nobody paid attention to it) stating that an affidavit of mailing to the plaintiff was not presented. I guess somebody forgot to link “state wide” and “american commerce” in the mailing affidavit. It happens, and I am sure this mistake will not happen again.
I like how the court ducked the main issue here: Can a denial be sent to the treating acupuncturist as opposed to the P.C. If the court follows Judge Ciaffa’s agency theory case and pertinent precedent regarding the duty to communicate, then the answer to the question should be an unconditional “yes”.
Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 2014 NY Slip Op 51244(U)(App. Term 2d Dept. 2014)
Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.)
“The Civil Court denied defendant’s motion on the ground that defendant had not established that its procedure for mailing denial of claim forms had been followed. This appeal by defendant ensued.”
“Contrary to the determination of the Civil Court, the affidavit by defendant’s litigation examiner established, based upon her personal knowledge, that defendant’s procedures for mailing “
By MD, P.C. v NY Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51232(U)(App. Term 2d Dept. 2014)
“In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (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 [App Term, 2d & 11th Jud Dists 2007]). The affidavit submitted by plaintiff was insufficient to rebut the presumption of receipt (see Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists 2005]). “
This same paradigm played out in City Care Acupuncture v. NYCM, 39 Misc.3d(A)(App. Term 1st Dept, 2014) and in American Transit v. Bacchus, Index #: 310450/11.
What is ironic (or maybe not) is that all of these cases with these conclusory affidavits are from the clinics that are associated somewhat with the Safire group, e.g., AB Medical, City Care Chiro, MK Chiro, BY MD, etc. Draw your own conclusions.
E4 Servs., Inc. v National Liab. & Fire Ins. Co., 2014 NY Slip Op 51124(U)(App. Term 1st Dept. 2014)
“In opposition, plaintiff’s “denial of receipt, standing alone,” was insufficient to raise a triable issue (Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 ; see Trusts & Guar. Co. v Barnhardt, 270 NY 350, 354-355 ; E4 Servs., Inc. v Lincoln Gen. Ins. Co., 43 Misc 3d 136[A], 2014 NY Slip Op 50678[U][App Term, 1st Dept 2014]). Nor did plaintiff provide a sufficiently detailed showing of its own procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims to raise a triable issue of fact”
You are starting to get the sense that proving a lack of receipt is as cumbersome a process as proving a document was mailed.
Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 2014 NY Slip Op 50950(U)(App. Term 2d Dept. 2014)
“Contrary to plaintiff’s sole contention on appeal, the affidavits and documents submitted by defendant in support of defendant’s motion were sufficient to establish that the denial of claim form 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 [App Term, 2d & 11th Jud Dists 2007]; see also CPLR 4518).”
As we all know, a business record foundation is not necessary to demonstrate that a denial is timely as the document is not used for a non-hearsay purpose. Perhaps, this is interesting because Allstate apparently lost on anther mailing case, with presumably similar affidavits. Yet, in this case, “4518” was the elixir that righted where something was wrong. Or, was this just a new set of law clerks at the Appellate Term who saw seeing these cases differently? These are questions I just do not have the answers to.
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.
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?
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”
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).”
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.”