Points of Health Acupuncture, P.C. v GEICO Ins. Co. 2009 NY Slip Op 52445(U) (App. Term 2d Dept. 2009)
“[a]s the affidavit executed by defendant’s claim representative stated that she began working for defendant after the denial of claim forms at issue were allegedly mailed by defendant, and defendant did not otherwise establish…its standard office practice and procedure for the mailing of denial of claim forms during the pertinent time period, defendant failed to establish that its denial of claim forms were timely mailed.”
Affidavits of mailing must state that the affiant was employed with the company for the duration of the claim, or for a defined time period prior to the date of the denial of claim form, verification request or other dated correspondence. Despite the above, the Appellate Term may have created an exception to the “must be employed for the duration” rule, when it held that the insurance carrier could “otherwise establish…its standard office and practice…during the pertinent time period….”
Bongiorno v State Farm Ins. Co.
2009 NY Slip Op 50860(U)(App. Term 2d Dept. 2009)
This case is not remarkable in any way, except according to my calculations, it is the first time a judge in Civil Richmond was overturned on a denied lack of medical necessity summary judgment motion. Actually, I think it is the first time I have seen an appeal from Civil Richmond in a no-fault case in awhile.
Defense attorneys in some courts are told that medical necessity summary judgment motions are not welcome and will be summarily denied.
My hope is that some of the holdout judges in the Second Department, who refuse to grant summary judgment to a carrier’s lack of medical necessity motion-when same is not rebutted with any affirmative medical proof- will now follow suit.
Time will tell, as will more appeals should the rule of law not be followed.
Note – this reference does not apply to the First Department – as of now