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.
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).”
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.”
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.
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”
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 ; 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.
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).”
Lenox Hill Radiology, PC v Tri-State Consumer Ins. Co., 2010 NY Slip Op 20530 (App. Term 1st Dept. 2011)
I guess now starting to face the onslaught of appeals that it was shielded from in years past, the Appellate Term, First Department has shared some choice words with the no-fault bar. One of the posters, I believe Sun, quoted the pertinent “observation” of the majority opinion at NFP. I am not going to quote it here. I would note that based upon the writing style, it appears that Justice Douglas McKeon authored that opinion.
What was nice is the reader, through an analysis of the majority and dissenting opinion, was given some details as to what the majority considered the bare minimum to establish the proper presumption of mailing.
The majority: “At trial, defendant presented the testimony of an experienced claims examiner, Jennifer Piccolo, who both personally prepared the initial and follow-up verification requests here at issue and possessed first-hand knowledge of defendant’s standard office mailing practice. The witness’s credible and consistent account of the mailing procedures generally followed by defendant, including how the mail was systematically picked up during the work day, when it would “go out,” and what steps would be taken if a verification letter was returned as undeliverable (an event which, the witness noted, did not occur here), “obviated the necessity of producing a witness with personal knowledge of the actual mailing” of defendant’s verification letters (see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 ). Nor was it incumbent upon defendant to produce a witness, such as a mail clerk or other clerical employee, whose duty it was to ensure compliance with its mailing procedures or who possessed personal knowledge of such compliance.
By the way – I am putting the world on notice – if anyone cites to Contemp v. Geico on any papers that cross my desk, you are liable for Part 130 sanctions. This is the written warning that the rules require. If you make this argument, withdraw it. If you want to make it, don’t. If you practice no-fault, you will probably have crossed this blog so you are on notice. Thank you.
The dissent (Schoenfeld, J.S.C.) is interesting, and illuminates what was missing from the witnesses’ testimony, yet in the eyes of the majority was sufficient to grant judgment to the defendant:
Q: Personal knowledge as in you observe them do their day to day job with respect to… receipt of mail returned?
Q: Nor with any of their other responsibilities with respect to mailing, correct?
Justice Schoenfeld – who I had an interesting back and forth with at oral argument in A-Plus v. Mercury (as Plaintiff was counsel was probably smirking), seems to believe that the affiant or witness must observe, on some level, the day-to-day mailing activities. Again, he is not advocating the “duty to ensure compliance” lingo. But personal knowledge to him requires someone whose job title involves processing, sorting or observation of the mail procedures.
My observation – and it is only an observation – is that the majority is of the viewpoint that if the opponent of the “mailing” is not going to present evidence that the document was not received, then the Appellate Term does not want to hear it. The Court seems to be telling us that Civil Court judges have better things to do than to pass on esoteric issues of mailing. Again, this was just an interesting decision.
People v Abelo, 2010 NY Slip Op 09567 (1st Dept. 2010).
“The evidence which gives rise to the trial error was the testimony of one Kimberly Shaw, a customer representative for the DMV, who was first employed in 2002. She testified to mailing procedures at DMV. Shaw testified that based on an abstract generated on November 23, 2005, defendant’s license had been suspended 57 times on 16 dates between 1983 and 1994 for unpaid tickets. Shaw testified that a driver’s license suspension is mailed to the address on file at the DMV, that such a mailing had occurred in December 1992, and that defendant’s license was suspended on January 4, 1993. The court admitted the 1992 notice of suspension. On cross-examination Shaw acknowledged that she did not work for DMV in 1992, and could not testify concerning standard mailing procedures during that year or those in place in 1993. She also acknowledged that procedures had changed. The court then refused to admit the 1993 suspension notices because Shaw was not familiar with the business practices in place at that time or earlier, but it refused to strike the already admitted 1992 notice.”
“The People here argue that, having produced Kimberly Shaw, they satisfied their obligation to produce a witness who was subject to cross-examination. While defendant acknowledges that it was clearly not necessary to produce someone who was employed at the time the notice was mailed, he argues that the People were obligated to produce someone who had at least familiarized herself with the procedures current at the time. Moreover, as defendant argues, the trial court’s refusal to admit the 1993 notices of suspension because Ms. Shaw was unfamiliar with the mailing practices in 1993 was inconsistent with admission of the 1992 notice of suspension. The witness made it clear that she was not familiar with the practice in either year.”
“A witness who on cross-examination denies knowing what procedures were used at the time of mailing does not satisfy the obligation to produce a witness who can be adequately cross-examined concerning notice to defendant. In essence, the notice of suspension was admitted without foundation, and under the facts of this case its admission constituted reversible error.”