Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY Slip Op 50401(U)(App. Term 2d Dept. 2015)
(a) As to non-receipt
“[D]efendant’s mere denial of receipt of [the claim at issue] was insufficient to rebut the presumption of receipt established by plaintiff’s proof of mailing” (see Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2013]). Thus, defendant failed to raise a triable issue of fact with respect to plaintiff’s first cause of action.”
The law requires a detailed discussion as to how the conclusion of non-receipt was reached.
(b) As non-receipt of verification
“Defendant demonstrated prima facie that it had not received the requested verification and thus that plaintiff’s second cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from one of plaintiff’s employees, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant”
This is conclusory affidavit where the biller says they sent the verification but never actually presents proof that the verification was complied with. How can this document raise an issue of fact?
One Response
What did the affidavit actually say? Either way, if it was by someone who personally mailed something then they can come testify. At least plaintiff had something, while defendant seemed to have baseless allegations (according to the above quotes). Anything could have raised an issue of fact when you’re up against unsubstantiated claims.