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.”

You can't swear about things that happened at your job before you got there

South Nassau Orthopedic Surgery v Auto One Ins. Co., 2011 NY Slip Op 51300(U)(App. Term 2d Dept. 2011)

Where have we seen this before?

“Defendant did not raise a triable issue of fact in opposition to plaintiff’s motion or establish its entitlement to summary judgment on its cross motion. In her affidavit, defendant’s litigation manager stated that she had begun working for defendant after the claim denial forms at issue had allegedly been mailed by defendant. As defendant did not establish actual mailing of [*2]the claim denial forms or defendant’s standard office practice and procedure for the mailing of the claim denial forms during the pertinent time period, defendant failed to show that its claim denial forms were timely mailed”

Oh by the way, I am sure Plaintiff received the denial.  Yet, the difference between fact and fiction can sometimes be indistinguishable in this practice.


Mailing proof

Thibeault v Travelers Ins. Co., 37 A.D.3d 1000 (2d Dept. 2007)

“While it is true that an insured’s denial of receipt, standing alone, is insufficient to rebut the presumption (see id. at 829-830), here there is additional evidence that an omission in the address as stated on the Thibeaults’ policy application and used by defendant prevented delivery of the notice. There is no dispute that the address was incomplete, inasmuch as it left out the name of the Thibeaults’ business under which the post office box was registered. Because the Thibeaults submitted evidence that a mailing addressed solely to them, without the name of the business, would not be delivered to the post office box due to United States Postal Service practices, they succeeded in rebutting the presumption and raising a question of fact as to delivery of the notice”

Mailing turned on its head

Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 2011 NY Slip Op 50447(U)(App. Term 2d Dept. 2011)

“The affidavit of defendant’s litigation claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) in accordance with defendant’s standard office practices and procedures (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]). The mere denial by plaintiff’s medical biller of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests.”

There is nothing I like reading more than when the Plaintiff cannot prove lack of receipt after a prima case of mailing has occurred.  It is vindication after the years of being trapped by the Contemporary precedent, which at the time was anything but contemporary – more or less antiquated.

DWI defense non-upheld: mailing, denials and affidavits gone awry

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 01458 (2d Dept. 2011)

If it could have gone wrong, it did.

“In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff’s claim. The defendant’s denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375).”