Key Takeaway
Court decision analysis reveals flawed verification non-receipt ruling where affidavit failed to specify mailed items or dates, creating questionable precedent.
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 ). 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 ).”
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.
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