Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 2011 NY Slip Op 50447(U)(App. Term 2d Dept. 2011)
“The affidavit of defendant’s litigation claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) in accordance with defendant’s standard office practices and procedures (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]). The mere denial by plaintiff’s medical biller of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests.”
There is nothing I like reading more than when the Plaintiff cannot prove lack of receipt after a prima case of mailing has occurred. It is vindication after the years of being trapped by the Contemporary precedent, which at the time was anything but contemporary – more or less antiquated.
9 Responses
JT This is exactly what the New York Court of Appeals ruled in Nassau Insurance Company v. Murray in 1978. By the way, what is the name of the case you are citing. You did not cite the name of the case in your posting.
Sorry about that. I sometimes forget to post the name of the case. Nassau v. Murray… Where were you in 1978? What is interesting is that the COA never really discussed the mailing issue subsequent to Murray.
In 1978 I graduated from College and was awaiting admission to law school
I don’t remember seeing a decision that said mere denial of receipt was sufficient. You see this all of the time in motions to vacate default judgments and usually it involves a an affidavit saying so and so was personally served, but sometimes you see it in cases where a party says they never got the motion. In all the decisions I’ve seen, mere denial is not enough; except in cases where the person who was allegedly personally served says that they weren’t.
I never realized you were so old. I’m going to see about getting a walker for you when you are in court.
This case is nothing extraordinary. I just noted it because it was nice to see the shoe on the other foot.
I have been getting the feeling lately that New York No-Fault Practice is a bit like Logan’s Run, in terms of attorneys getting older.
Some day — soon perhaps — I will spend my days in a rocking chair by a Franklin stove, telling young no-fault attorneys stories about the early days of NY PIP.
Rogak you better hang out with me for a few months so you’ll have some fun and exciting stories to tell.
I don’t know what this says. I think if the provider lays a foundation for how incoming mail is handled and logged and stamped and given to certain people depending on what the mail deals with — or simply logged and described in a practice management software system and filed. And then you say I looked here and there and everywhere — and its not there; and we don’t mess up.
I don’t know how a general affidavit of how things are mailed — failing to refer to the specific item (denial etc); as we generally see — I don’t know how an affidavit saying this is the way we mail in general defeats the provider’s affidavit that says this is the way we receive mail and X did not come.
The Courts have taken the syllogism way to far. All mail is sent. They denial was mailed. You see you need another component for there to be logic: All mail is sent. Denial dated such and such is mail. Denial dated such and such was sent.
But when was it sent? Oh dear it needs more. To complex — why not just cut to chase courts. Here is all you need in an Affidavit. “I am insurance company. I am perfect. I mailed everything my attorney says I mailed in a timely fashion.”
Have the affidavit signed electronically in Norcross GA right near where Ned Beatty had that unfortunate meeting with the Hill Billies in Deliverance.
God this is America.
P.S. I am working on my athiest cross. “You don’t believe in God correct?” “So you don’t believe what you are saying now.”
I hear Norcross is a nice place to live. Decent schools, low taxes, minimal traffic, nice weather and a better quality of life than here in the metropolitan New York region. The air quality is not too good, but that is because it is near Atlanta. The median home price is $152,000 and the cost of living is 8% below the US mean.
I guess those hill billies can be put up with in that case. Just don’t go near the river. I’m looking into it. Things are getting tough on Herbert Street. Maybe I can get a job at the secure mailing facility there.