Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 2014 NY Slip Op 50950(U)(App. Term 2d Dept. 2014)
“Contrary to plaintiff’s sole contention on appeal, the affidavits and documents submitted by defendant in support of defendant’s motion were sufficient to establish that the denial of claim form had been 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]; see also CPLR 4518).”
As we all know, a business record foundation is not necessary to demonstrate that a denial is timely as the document is not used for a non-hearsay purpose. Perhaps, this is interesting because Allstate apparently lost on anther mailing case, with presumably similar affidavits. Yet, in this case, “4518” was the elixir that righted where something was wrong. Or, was this just a new set of law clerks at the Appellate Term who saw seeing these cases differently? These are questions I just do not have the answers to.
One Response
You mean the document is not being used for hearsay purpose. Because if “the document is not used for a non-hearsay purpose” then it is being used for hearsay.
But to say that a denial is not being used for hearsay purposes is a statment made by a lawyer being willfuly obtuse to mislead the court. Not too many lawyers down at at 500 Pearl Street would have the audacity to say the the denial, the actual document attached to the motion, is not hearsay.
The denial is a statement by the insurer denying benefits on a specific date.(an out of court statement)
the issue is whether that statement is being offered in court to show that benefits were denied on a specific date(the truth of its content)
Whether or not the insurance company lackeys wearing robes and sitting on the bench in civil court choose see that is a whole other issue.
Or is it never hearsay because the insurance company says so.