No show and non receipt

Progressive Health Chiropractic, P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50603(U)(App. Term 2d Dept. 2017)

(1)  “we do not consider a mutual rescheduling, which occurs prior to the date of that scheduled IME, to constitute a failure to appear”

(2) “although the affidavit of defendant’s no-fault examiner was sufficient to show that defendant had never received that claim, the affidavit of plaintiff’s employee, in which the affiant stated that he had personally generated and mailed plaintiff’s $1,019.62 claim to defendant, was sufficient to give rise to the presumption that the claim had been received by defendant”

Mailed to the wrong address – okay

Allstate Insurance Co. v. Longevity Medical Supply, Inc., 2272/16 (Civ. Ct. NY Co. 2016)

This case was sent to me from Steven F. Palumbom Esq., of Gabriel & Shapiro, LLC.  In this case, the bill was mailed to one of Allstate Insurance Company’s addresses.  Allstate argued that it was not sent to the proper address for No-Fault correspondence, yet, failed to provide an affidavit of non-receipt.

Longevity lost before the lower arbitrator.  Longevity filed a demand for master arbitration, and the award was reversed.  Allstate filed a Petition to set aside the award of the master arbitrator.  The Petition was denied and the award of the master arbitrator was confirmed.

The case I think can be disposed of under the theory of 65-3,5(b).

While this provision deals with additional verification requests (this case involved the NF-3 or its functional equivalent), the regulation is instructive.  It states:  “If a claim is received by an insurer at an address other than the proper claims processing office, the 15 business day period for requesting additional verification shall commence on the date the claim is received at the proper claims processing office. In such event, the date deemed to constitute receipt of claim at the proper claim processing office shall not exceed 10 business days after receipt at the incorrect office.”  (the bold is obviously mine)

Thus, Allstate’s position lacked palpable merit.

Non-receipt defense prevails

Artzel, Inc. v Mercury Cas. Co., 2016 NY Slip Op 51437(U)(App. Term 2d Dept. 2016)

“[d]efendant moved for leave to renew its prior motion for summary judgment dismissing the complaint, which was based upon defendant’s non-receipt of the subject bill.”
The proof submitted by defendant in support of its motion was sufficient to demonstrate that defendant had not received the claim form at issue in this action. In the absence of evidence of plaintiff’s submission of the claim form at issue, defendant was entitled to summary judgment dismissing the complaint (see Meridian Acupuncture Care, P.C. v Mercury Cas. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50681[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v. Interboro Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]…

Here’s an interesting backstory here.  The original motion and the copy served on opposing counsel had all the documents.  The Court copy was missing the last page of the affidavit.   The renewal was to fix the issue with the court copy.  The non-receipt defense met with no affidavit of mailing and the eventual reversal on appeal.

I would call on OCA to expand mandatory e-filing to the Civil Courts.  It is 2016 already.  I have a small inventory and the amount of issues involving paper motions getting from the mail, to motion support, to Special Term and to the Appellate Term is plainly alarming.  If a $35 or $45 motion fee could accomplish this goal, then it would be worth it.  I think e-filing is the one thing in my 13 years of practice that I would say really is a great innovation of the court system.  The worst aspect?  Retention of Special Terms and other “specialized parts” that take away from the IAS system: One judge, One case.

The Westchester experiment?  Dysfunction, hands down.  The Supreme Kings CCP, Intake or DJMP part?  Circus. The Supreme Queens CMP Part? No comment.   My favorite is in the Supreme Kings JCP part – the cases are listed in Standards and Goal order.

Triable issue of fact as to submission of claim

Lenox Hill Radiology v Great N. Ins. Co., 2016 NY Slip Op 50206(U)(App. Term 2d Dept. 2016)

(1) “While defendant made a prima facie showing that it had not received plaintiff’s claim form, the affidavit of the mailing supervisor in plaintiff’s attorneys’ offices established that the claim at issue had been mailed to defendant. Thus, a triable issue of fact exists as to the submission of the claim form”

(2) “Moreover, contrary to defendant’s contention, even if plaintiff failed to submit the claim form in a timely manner, untimely submission, in and of itself does not entitle defendant to summary judgment dismissing the complaint”

I am confused as to why this was appealed, or why an insurance carrier paid money to appeal this?  Could someone enlighten me here?

Non receipt and verification

Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY Slip Op 50401(U)(App. Term 2d Dept. 2015)

(a) As to non-receipt

“[D]efendant’s mere denial of receipt of [the claim at issue] was insufficient to rebut the presumption of receipt established by plaintiff’s proof of mailing” (see Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2013]). Thus, defendant failed to raise a triable issue of fact with respect to plaintiff’s first cause of action.”

The law requires a detailed discussion as to how the conclusion of non-receipt was reached.

(b) As non-receipt of verification

“Defendant demonstrated prima facie that it had not received the requested verification and thus that plaintiff’s second cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from one of plaintiff’s employees, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant”

This is conclusory affidavit where the biller says they sent the verification but never actually presents proof that the verification was complied with.  How can this document raise an issue of fact?

On receipt and mailing

Medcare Supply, Inc. v Farmers New Century Ins. Co., 2014 NY Slip Op 51752(U)(App. Term 1st Dept. 2014)

(1) You just have to wonder what this means.  Does personal knowledge require having someone go to Oklahoma City to personally know how mail is received (that required to prove mailing), or is more akin to a business record practice where the personal knowledge can be a little less personal?  Floodgates abound.

“The defendant insurer failed to establish, prima facie, that it did not timely receive the plaintiff provider’s no-fault claim. In this regard, defendant relied on the affidavit of a claims representative employed in the Hicksville, New York office of non-party Farmers Insurance Exchange (“Exchange”), the entity which “administers claims” on defendant’s behalf. Although the affiant averred that there was no record of the underlying no-fault claim in his office’s paper and computer files, he professed no personal knowledge of the practice and procedures put in place by defendant in connection with the handling of no-fault claims sent to its Oklahoma City office, the designated mailing address for the submission of such claims”

(2) The Court has found that a proof of mailing without affidavit is sufficient to prove an assertion that the document was mailed.


Additional verification letters were mailed and proof of non-receipt was insufficient

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 [2004]; see Trusts & Guar. Co. v Barnhardt, 270 NY 350, 354-355 [1936]; 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.

Again – a mere denial will not rebut proof that a verification demand was mailed

Triangle R, Inc. v Tri-State Consumer Ins. Co., 2013 NY Slip Op 50256(U)(App. Term 2d Dept. 2013)

“The affidavits submitted by defendant established that defendant had timely mailed (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]) its initial and follow-up requests for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). The mere denial by plaintiff’s [*2]office manager of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests

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.

What went wrong here?

Aminov v Travelers Prop. Cas. Ins. Co., 2010 NY Slip Op 51723(U)(App. Term 2d Dept. 2010)

“While the complaint listed the total amount allegedly owed to plaintiff, it did not list the dates that the subject medical services were provided, and the subject claim forms were not annexed to the complaint. Therefore, while defendant asserted that it had never received the claim forms, such assertion appears to be belied by the fact that defendant was aware of the dates the medical services were rendered, and it is unclear from what source defendant acquired this knowledge if not from the claim forms. In light of the foregoing, upon the instant motion, defendant failed to establish as a matter of law that plaintiff had failed to submit the subject claim forms within 45 days of the date that the services were provided (see Insurance Department Regulations [11 NYCRR] § 65-1.1).”

As a practitioner, nothing bothers me more than a party’s failure to specify the date(s) and amount(s) of the transactions.  One could even say that the CPLR requires this and the complaint should have been thrown out on this ground.  CPLR 3016(f); 3211(a)(7).

In any event, the carrier should have sought discovery as to the bills and moved accordingly.  Also, how did the 180 and 45 day rule come about here insofar as these are precludable defenses.  Were any denials issued?  Very strange.