New Way Med. Supply Corp. v Praetorian Ins. Co., 2015 NY Slip Op 51632(U)(App. Term 2d Dept. 2015)
“However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether these causes of action are premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).”
This was my file. The affidavit never states WHAT was mailed and WHEN it was mailed. The “exhibits” attached include a prescription and confirmation receipt. The verification sought: An invoice for the DME and contemporaneous medical records. None of these were provided, nor was an excuse provide for their non-existence. Also the affiant, Inna Tkachenko is the “billing manager”, not the owner. Yet, Rybak raised an issue of fact? Glad to see somebody reversed an order and DID NOT read the papers. IMHO, the law clerk that writes these decisions needs to really look at these papers a bit more carefully. Not a good day for our judiciary.
2 Responses
It happens to the best of us. Maybe next time. At least someone who reads the papers understands that praetorian never receives anytning and even if something is submitted it is still not enough. An Affidavit is There to raise triable issues of fact and any challange to its credability requires the denial of the motion. Clearly what the court did here.
Maybe your client will agree to settle these cases next time and not engage in unnecessary litigation and appellate practice.
The continous calling out people by name is not necessary. Why?
Simple. Your papers are boilerplate and do not provide information as to what is sent and when it is sent. If you produced the required verification in your papers and an affidavit stating when you mailed it, then these decisions make sense. You are rehashing the same affidavit, occasionally annexing unresponsive items and the court is giving you a free pass. Does not sound fair to me. Would you feel it is proper for the carrier to provide an affidavit that it mailed a denial, but never produced the denial in opposition to your motions?