Eagle Surgical Supply, Inc. v Travelers Indem. Co., 2010 NY Slip Op 51456(U)(App. Term 2d Dept. 2010)
“[d]efendant failed to establish that plaintiff did not provide the requested verification. Defendant’s litigation examiner did not even allege that the requested verification was outstanding, and defendant’s attorney failed to demonstrate that she had personal knowledge to support her assertion of defendant’s non-receipt of such documents (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Feratovic v Lun Wah, Inc., 284 AD2d 368, 368 [2001]; V.S. Med. Servs., P.C. v New York Cent. Mut. Ins., 20 Misc 3d 134[A], 2008 NY Slip Op 51473[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.”
By the way: you saw this before- A.B. Medical Services, PLLC v. Country-Wide Ins. Co., 23 Misc.3d 140(A)(App. Term 2d Dept. 2009):
Since the affidavit of defendant’s no-fault litigation supervisor lacks specificity to support the assertion that defendant did not receive the verification it requested, it was insufficient to establish that the verification was still outstanding and, thus, defendant’s time to pay or deny the claims was not tolled.
11 Responses
An employee with foundation should set forth the procedures utilized to ensure the proper receipt and routing of incoming mail and that said procedures were complied with in the instant case?
This would seem a logical corollary to the manner in which outgoing mail is typically established as mailed. Damned if I have seen this case, however.
What was with Golia’s pat on the head at the end?
I was rather surprised at Golia’s concurrence because it can be read in a manner that could help the medical provider– i.e. lack of receipt not proven up by “personal knowledge.” Would have been more accurate to state “via personal knowledge” or otherwise. Of course, proving lack of receipt of a document sent to a corporation solely via personal knowledge would probably be impossible, assuming the affiant is not lying.
I don’t think the court’s have really worked out the lack of receipt angle, and this is part of the fallout.
It could help the medical providers. I agree, and that is fine in my opinion.
Why some defendants do not put the same proof in support of their verification non receipt motions, viz, the actual non-receipt of the verification, as would be put in the non-receipt of bills motion, viz, the actual non-receipt of the bills, has always surprised me.
Golia is just commenting on some of the shoddy practices that are out there. That being said, we are all guilty of making mistakes, including you and I, Sun; so those who live in glass houses should not throw stones.
Sorry but I do not make legal error as proficiently as that particular justice, and when I do, it isn’t the law.
When divergent rules of evidence apply to medical providers as compared to insurers, for example, that’s the time to exercise the right to free speech, not the time to be concerned over casting stones.
There is nothing wrong with exercising your First Amendment rights. I even let Zuppa do it here, usually much to my chagrin. Much of what comes out of the Appellate Term are tiny nuances that represent issues of first impression. While I understand much of the providers’ consternation over certain legal precedent that has come from that court, I do not think it is necessarily fair to make such broad based statements regarding certain justices. I guarantee I could find quite a few cases where “that particular justice” ruled against an insurance carrier, where such a ruling could be demonstrated to be unfounded. I am not casting stones – just speaking the truth.
I have no plans to use your site as a bully pulpit of that sort. Indeed, I was somewhat nice to him in the above post. And I pick my battles more carefully than you suggest.
I am aware of that. I am not suggesting anything.
You speak the truth J.T. You can’t handle the truth.
Generally speaking, the same things piss us all off, the Zuppa included. It’s all about the consistent application of the law. When we are told that everything we learned in law school is wrong, we reject it and fight.
Now that deserves a bravo.
From the goddam moment I got a handle on hearsay to my Appellate Advocacy coach saying “do not give a string cite — proof the main case by showing its factually on all fours with this case.” To this whole damn pitiful tactic of misstating my case and then arguing against the misstated case — primarily practiced by defense counsel obviously too stupid to be addressing my real argument.
I took law school and the law very seriously and I am finding that the Courts do what they want based upon bias not the law.
Moreover the courts buy into the stupid tactics if said tactics emanate from the side or counsel that holds the courts’ sympathy.
Say goodbye to one of the checks and balances that is supposed to maintain our democracy and hello to the neo corporate/government fascism of the this brave new world in Amerika.
Why did I waste my time. I could be making real money doing something else.