Inconsistencies in the proof of mailing end plaintiff's quest for summary judgment

Alur Med. Supply, Inc. v GEICO Ins. Co.,2010 NY Slip Op 51053(U)(App. Term 2d Dept. 2010)

“In the instant case, plaintiff’s motion for summary judgment was supported by the affidavit of plaintiff’s billing manager as well as an annexed certificate of mailing, referred to in the affidavit, which indicated that the subject claim form was mailed to a different insurer. In light of the discrepancies between the affidavit and the annexed certificate of mailing, plaintiff did not establish submission of the claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 ; see also AKS Med., P.C. v Progressive Ins. Co., 24 Misc 3d 135, 2009 NY Slip Op 51494 ). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment, and its motion should have been denied.”

Assuming that you agree that Plaintiff’s proofs were insufficient to prove the mailing of the bills, then this was the correct disposition.  The failure to establish a movant’s prima racie entitlement to summary judgment requires the denial of the motion regardless of the sufficiency of the answering papers.  This is the standard in all areas of law except no-fault.  The law in no-fault practice in the Appellate Term, Second Department – which is incorrect – is that the a defendant’s admission of receipt of a claim form in its answering papers can “cure” the deficiencies of the plaintiff’s moving papers.  Oleg Barshay, DC, P.C. v. State Farm Ins. Co., 14 Misc.3d 74 (App.Term 2d Dept. 2006).

Who knows if Alur Medical is a quirk or if it represents the new and proper view of the Appellate Term, Second Department?

As to the merits of the attempt to establish a “prima facie” case, to wit, whether plaintiff’s proofs were sufficient, on its face to establish the bill was mailed, the question really should be whether the discrepancy in plaintiff’s proofs was minstrel or manifest.  Too many times, the courts in this area of law punish both sides for leaving out a word, phrase, or misspelling something when the issue involves the mailing of a document.  In this case, the discrepancy was manifest; thus, nobody can disagree that the Court, in the first instance, properly denied plaintiff’s motion for summary judgment.

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