Great Health Care Chiropractic, P.C. v Citiwide Auto Leasing, 2014 NY Slip Op 50476(U)(App. Term 2d Dept. 2014)
I am guessing nobody realized that the burden is on the medical provider to demonstrate that the attorney that the letter was mailed to did not represent the EIP. American Transit v. Leon. As to Lincoln Avenue v. Lincoln Place, the Courts have held that if the letter is mailed to a building sans apartment number or suite number, then there is sufficient proof of mailing. It would seem to follow that an error with “avenue” and “place” should not vitiate a proper mailing. The Appellate Division and Appellate Term, First Department have held that. The question here is whether Respondent’s brief hit on any of these points. If they did not (or at least argue it before the panel), then shame on the attorney.
I would seek leave to go to the Second Department on this one.
(1) “With respect to the address to which the IME scheduling letters were mailed, defendant’s cross-moving papers show that the letters were sent to plaintiff’s assignor at “285 Lincoln Avenue” while the NF-3 form plaintiff submitted to defendant states that plaintiff resides at “285 Lincoln Place.” Wrong on the law.
(2) “To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff’s assignor was represented by that attorney. Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled” Wrong on the law.
(3) “[a]nnexed to defendant’s cross-moving papers were copies of defendant’s denial of claim forms, which denied plaintiff’s claims on multiple grounds. As a result, plaintiff did not meet its prima facie burden”
