TAM Med. Supply Corp. v Travelers Ins. Co., 2018 NY Slip Op 50315(U)(App. Term 2d Dept. 2018)
Sometimes, these orders are written in such a way where the Plaintiff has to actually prove something at trial. What I find obnoxious is that the proof of submission of the verification in the first instance is a boilerplate affidavit with nothing to substantiate is averments. Can somebody already take this up?
“Contrary to plaintiff’s assertion, the Civil Court properly stated that plaintiff bears the [*2]burden at trial of proving its prima facie case (see V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). However, inasmuch as it is a defendant’s burden at trial to show that it has a meritorious defense and that such a defense is not precluded (see Presbyterian Hosp. in City of N.Y v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the Civil Court improperly determined that, at trial, plaintiff must prove “whether it fully complied with [defendant’s] verification requests.””
2 Responses
is it obnoxious that the proof of non-receipt of the requested verification is an affidavit from a claims rep with no personal and nothing to substantiate is averments.?
Claim reps know everything. I see them bossing the attorneys around all the time. They are clearly smarter than all of us since they are in charge. Hell, in-house attorneys have to ask permission to use the bathroom.