Key Takeaway
Court finds employee affidavit sufficient to create presumption that verification was mailed and received by defendant insurer, establishing triable issue of fact.
In New York no-fault insurance litigation, verification requirements play a crucial role in determining whether an action is premature. Insurance companies frequently argue that healthcare providers failed to properly submit required verification forms, making any subsequent lawsuit premature. However, courts have established that providers can create a presumption of proper mailing and receipt through employee affidavits.
The verification process is particularly important in New York No-Fault Insurance Law cases where providers must demonstrate compliance with pre-suit requirements. This often involves proving that verification forms were properly mailed to insurers within required timeframes. When insurers claim non-receipt, the burden shifts to providers to establish proper mailing procedures.
Courts have developed specific standards for what constitutes sufficient proof of mailing. Generic compliance affidavits, sometimes referred to as “Rybak affidavits” after relevant case law, have become a common tool for establishing this presumption. The effectiveness of these affidavits often determines whether a case can proceed or faces dismissal for prematurity.
Jason Tenenbaum’s Analysis:
Vladenn Med. Supply Corp. v Travelers Ins. Co., 2016 NY Slip Op 50381(U)(App. Term 2d Dept. 2016)
“However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s employee, 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 this action is premature”
Would this be the famous generic Rybak compliance affidavit?
Key Takeaway
This decision demonstrates that employee affidavits can successfully counter insurer claims of non-receipt of verification forms. Rather than granting summary judgment dismissing the action as premature, the court found sufficient evidence to create a triable issue of fact. This approach provides healthcare providers with a viable defense against prematurity arguments, though the specific content and format of compliance affidavits remains crucial for success.
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- IME Notification Requirements in New York No-Fault Cases: Address Matching Rules
- Triable issue of fact as to non-appearance?
- New York No-Fault Insurance Law
