A verification non receipt decision that does not make sense.

The verification process in New York No-Fault insurance litigation exists to combat fraud and ensure medical providers actually rendered the services they claim. When insurers request additional verification, providers must respond with specific documents demonstrating the legitimacy of their claims. The Second Department Appellate Term’s decision in New Way Medical Supply Corp. v Praetorian Insurance Co. raises serious concerns about how carefully courts examine the substantive content of affidavits purporting to establish mailing of verification materials.

Under established New York law, insurers may deny no-fault claims as premature when providers fail to comply with reasonable verification requests within the statutory timeframe. The Insurance Regulation 11 NYCRR 65-3.5 authorizes insurers to request “verification necessary to determine that the service was actually provided to the injured person” and authorizes insurers to deny claims for “failure to provide verification” within 30 calendar days. This regulatory framework protects insurers from fraudulent billing while giving legitimate providers reasonable opportunity to document their services.

When litigation ensues over verification disputes, courts apply the mailbox rule presumption: proper mailing creates a rebuttable presumption of receipt. However, this presumption only arises when the affiant establishes the foundational elements required for applying the rule. The affidavit must specify what was mailed, when it was mailed, to whom it was addressed, and the standard office procedures ensuring proper mailing. Without these specifics, courts cannot determine whether the presumption applies, much less whether it has been rebutted.

The Appellate Term’s decision in New Way Medical Supply appears to apply the mailbox rule presumption without adequate factual foundation in the supporting affidavit. This approach conflates the existence of an affidavit with the substantive adequacy of its content, potentially undermining the verification process that protects both insurers and the no-fault system from abuse.

Case Background

New Way Medical Supply Corp. sued Praetorian Insurance Co. to recover no-fault benefits for durable medical equipment provided to an injured person. Praetorian moved for summary judgment dismissing the complaint as premature, arguing that New Way failed to provide requested verification materials. Specifically, Praetorian sought an invoice for the DME and contemporaneous medical records justifying the prescription.

In opposition to the insurer’s motion and in support of its cross-motion, New Way submitted an affidavit from Inna Tkachenko, identified as the “billing manager.” The affidavit purported to establish that New Way had mailed the requested verification to Praetorian. However, the affidavit did not specify what documents were actually mailed or when the mailing occurred. The exhibits attached to the affidavit included a prescription and what appeared to be a confirmation receipt, but conspicuously absent were the invoice and contemporaneous medical records that Praetorian had specifically requested.

The motion court denied Praetorian’s motion for summary judgment and granted New Way’s cross-motion, finding a triable issue of fact existed regarding whether the claim was premature. The Appellate Term affirmed, holding that Tkachenko’s affidavit was “sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant” under Residential Holding Corp. v Scottsdale Insurance Co.

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.

Legal Significance

The decision in New Way Medical Supply deviates from established principles governing the mailbox rule and its application in verification disputes. The Court of Appeals has consistently held that the presumption of receipt from proper mailing arises only when the proponent establishes specific foundational facts. An affidavit must describe the office procedures ensuring proper mailing, identify the date of mailing, specify the contents mailed, and confirm the address used. Generic assertions that “verification was mailed” without these specifics should not trigger the presumption.

Moreover, the decision creates potential for abuse of the verification process. If providers can defeat prematurity defenses by submitting vague affidavits that fail to identify what was purportedly mailed or when, insurers lose their ability to enforce verification requirements effectively. The regulatory framework authorizing verification requests becomes meaningless if providers can avoid compliance through conclusory assertions of mailing unsupported by specific factual averments.

The Appellate Term’s characterization of Tkachenko as “plaintiff’s owner” when she was actually identified as “billing manager” suggests the court may not have carefully reviewed the record. This factual error, combined with the court’s acceptance of an affidavit lacking essential specificity, raises concerns about the thoroughness of appellate review in high-volume no-fault cases. While judicial economy demands efficient case processing, fundamental requirements for establishing prima facie cases should not be compromised.

Practical Implications

For insurance carriers defending verification-based denials, New Way Medical Supply demonstrates the importance of detailed record-keeping regarding verification requests. Insurers should document precisely what verification was requested, when requests were sent, and whether responsive materials were received. When providers submit affidavits claiming they mailed verification, insurers must scrutinize the affidavits for the specific factual assertions required to trigger the mailbox rule presumption.

Defense counsel should object to affidavits that fail to specify what was mailed, when mailing occurred, or the office procedures ensuring proper mailing. Generic assertions that “verification was provided” or “materials were mailed” should not suffice. Counsel should also compare the affidavit’s description of materials purportedly mailed against the specific verification items requested, highlighting any discrepancies or omissions in opposition papers.

For medical providers, the decision might appear to offer leeway in verification compliance, but practitioners should resist any temptation to submit vague affidavits. Courts may not consistently apply the lenient standard reflected in New Way Medical Supply, and providers risk adverse determinations if their affidavits lack specificity. Better practice involves maintaining detailed logs of verification submissions, including dates, methods of transmission, and specific documents provided. Contemporaneous documentation makes subsequent litigation far more defensible than reconstruction through affidavits years after the fact.

Related Articles

• Understanding verification request mailing requirements in New York No-Fault claims
• When technical verification requirements override common sense in No-Fault insurance
• The 150-day verification rule and timing issues
• Procedural fairness issues in No-Fault insurance litigation
• New York No-Fault Insurance Law