Great Health Care Chiropractic, P.C. v Hereford Ins. Co., 2016 NY Slip Op 50858(U)(App. Term 2d Dept. 2016)
This is my plea to those at the Appellate Term who read this blog. You seriously need to stop finding triable issues of fact on verification cases because: “However, in opposition to the 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”
I would think if the law requires a party to tender their proof (one way or another) in support of or in opposition to a motion for summary judgment, then that proof should be tendered. If verification requested is a photo of a sunset over the Atlantic ocean and the affidavit says it was “mailed”, what should be annexed as an exhibit? A photo of the sunset over the Atlantic ocean.
But aside from trying to get the Appellate Term to hear reason, I put the blame on this predicament on the carriers. Why? Nobody seeks leave to the Appellate Division. A well support leave application would be granted. What is a well supported leave application? It is EVERY case that this has come up (we are at 100 now). A copy of the “affidavit” of compliance and a statement that this is used in every verification case will probably cause the App. Div. to look into these cases.
While I try to solve these proof problems at the Appellate Division, this will surprise you to know that all of my Rybak verification cases have settled or have been resolved. My hands are tired, otherwise I would have been on top of this awhile ago.
FYI – my next issue is rocket docket, 2106 (again) and collateral estoppel of PIP awards on UM cases and Thrasher. I have a busy Appellate Division calendar on top of running a business.
8 Responses
Jason the fact that proVider submitted documents. Whether that is sufficient or not for the carrier is a question of fact. Its interesting that country wide back in the day was claiming non receipt of verification responses despite having signed certified mail receipts. I did not see your rightchestness beating the drums as you do so often on these cases. You are just upset tHat Providers have caught up with the carrier bs and are calling it for wHat it is. Your client asking for a w-9 for every Submitted bill constitutes what a valid verification request. Or when your client asks for mediCal neCeasity of the dispensed DmE not from the trEating doctor but from the DME vendor that simply fills the prescription. That is also ok in your world. Why doesnt your helath insurer ask your local wallgreens for a medical necessity next time your dr. WrItes you a script for z-paCk. Its quite self serving and righTchesous oF you to attack and call out people. When what you propogate And sell To your clIents is balloney. What happened with cases like jaga and longevity. Why dont you post those and Therein critiquE your performance. Threats and statements of disparagement do not refLect well. You run a great blog and do a great service to the lagal community and especially the no fault bar but the personal vendetta you may have takes away from that.
I have no personal vendetta. I have the same criticisms about various defense attorneys and the clients they represent. Read the blog and you can figure it out. But your verification opposition is over the top.
That reads like a ransom note.
This does NOT sound like a personal vendetta. And you dispense with the same type of criticism and wishes to other counsel and their WELL BEING.
“This is my plea to those at the Appellate Term who read this blog. You seriously need to stop finding triable issues of fact on verification cases because: “However, in opposition to the 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”
“A copy of the “affidavit” of compliance and a statement that this is used in every verification case will probably cause the App. Div. to look into these cases.”
If these clients you speak of and their VERIFICATIONs are so over the top, then call them at trial and direct or cross examine them and let the trial of fact DETERMINE their veracity. the court should not be deciding the veracity of the witness or their testimony on an sj motion. you also made a very interesting point in the blog above, “While I try to solve these proof problems at the Appellate Division, this will surprise you to know that all of my Rybak verification cases have settled or have been resolved. My hands are tired, otherwise I would have been on top of this awhile ago.”
If you and your clients BELIEVE in your case and position then go ahead and try the case whey settle. settlement implies or at least hints at the fact that your clients are not the straight shooters you make THEM out to be but have skeletons in their closets that would expose their “verification requests” for what they are, a complete and total sham. an intentional delay tactic and a ploy not to pay the claims when the carrier knows it should. another red-tape dilatory claim handling PRACTICE. a trial on this issue will make everyone either put up or shut up. no point to attack others online. prove your case. that is it.
Again THANKS for the blog, I love it, I read it and I use it. The best place for no-fault.
Oleg, I will get one of these case to go to the Appellate Division. Cases settle for reasons not dictated by the relative merits. Carriers have positions regarding what is appropriate to appeal and how far to appeal cases. I am not telling you anything you do not know. But given the correct case and an amenable carrier, I will take one of these cases up the ladder. I could say more, but I won’t. Have a good Saturday.
Oh my goodness jason … oh boy …. oleg is shaking
why so angry … what you describe does sound any worse than the submission of an ime report or peer review report on a carrier’s motion for sj.
pure garbage.
and the motions filled with press releases and news paper clippings. does that still go on.
These uncontrollable feelings of rage will prove to be your undoing. relax.
The problem is that all too often some carriers use the verification process as both a sword and a shield. Judges and arbitrators are often hamstrung by the regulations. Too bad the insurance department does not investigate those insurers – much as the great ray Zuppa tried to get them to do.
The insurance department is the carriers. As stuart israel says “industry capture.” … or what is commonly called “corruption” … or what i call “fascism.”