Non receipt

Milky Way Acupuncture, P.C. v Nationwide Ins., 2019 NY Slip Op 51968(U)(App. Term 2d Dept. 2019)

Sounds like a deficiency due to the failure to adhere to one of the “who, what, when and why” rule.

“Plaintiff moved, insofar as is relevant, for leave to renew its opposition to defendant’s motion and, upon renewal, for an order denying defendant’s motion. Plaintiff supported its motion with a new affidavit by its owner, who stated that the bills at issue had been “resubmitted to insurance carrier” on June 7, 2010. Defendant opposed the motion. Plaintiff appeals from so much of an order of the Civil Court entered February 13, 2018, as, upon renewal, adhered to its prior [*2]determination granting defendant’s motion for summary judgment dismissing the complaint.”

Partial summary judgment cannot be granted on non-receipt

Parisien v Travelers Ins. Co., 2019 NY Slip Op 51895(U)(App. Term 2d Dept. 2019)

One party says it was mailed. Another party says it was not received. Seems rather impossible to obtain a grant of partial summary judgment.

” Moreover, under the circumstances, finding, in essence, that it was “incontrovertible” for “all purposes in the action” (CPLR 3212 [g]) that plaintiff had mailed the claim forms to defendant is inconsistent with also finding that there are issues of fact as to defendant’s defense that it had not received the claims at issue (see Irina Acupuncture, P.C. v Auto One Ins. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50781[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] [“by demonstrating that it had received the claim forms at issue long after plaintiff claims to have mailed them, defendant raised a triable issue of fact as to whether plaintiff’s practices and procedures resulted in the timely mailing of the claim forms to defendant”]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59, 61 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] [“by rebutting the presumption of receipt, plaintiff raised a triable issue of fact as to whether the verification requests had been properly mailed to plaintiff in the first place”]). Indeed, by, in effect, finding a triable issue of fact as to whether defendant received the claims at issue, the court contradicted its own statement that defendant’s “mere denial of receipt of the claims at issue was insufficient to rebut the presumption of receipt established by [plaintiff’s] proof of mailing.”

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