The Appellate Term's decision in A.B. Med. Servs., PLLC v. Country-Wide Ins. Co., 2008 NYSlipOp 52651(U) (App. Term, 2d Dep't, 2008) was posted today.
The decision is kind of messy, covering various issues briefly, but there's one interesting point. The Appellate Term found the following: "Since the affidavit of defendant's no-fault litigation supervisor lacks specificity to support the assertion that defendant did not receive the verification it requested, it was insufficient to establish that the verification was still outstanding and, thus, that defendant's time to pay or deny the claims was tolled."
I'm not sure what this means, and I can't find this language in prior no-fault decisions. What level of specificity is now required in a claim rep's affidavit to establish that requested verification was not received? Is it not enough for the rep to simply state that the verification was never received?
In any event, it appears that the Appellate Term has opened up a new avenue of attack on insurers' affidavits.
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Logic dictates that carriers can be no more conclusory regarding proof of lack of receipt as they can be with respect to proof of mailing.
Proof of lack of receipt will end up being determined by comparable standards as proof of mailing.
Two factors are in the equation (1) foundation testimony (i.e. that the employee would have knowledge of office practices used to ensure proper receipt of mail, and (2) testimony that the office practices are sufficently geared to ensure the proper receipt and logging of internal mail.
Cases providing the affiant must have a foundation regarding mailing practices include:
Claim of Feinerman, 97 A.D.2d 920, 470 N.Y.S.2d 762 (3rd Dept. 1983) (presumption of mailing not established when “[t]here was no testimony about where the representative worked, what her duties were in regard to the mailing of the purported letter or whether she was working at the time the letters were actually mailed”); See Uniondale Chiropractic Office v. State Farm Mut. Auto Ins. Co., 20 Misc3d 1130(A) (Dist. Ct Nassau County, August 7, 2008, by Hon. Engel, J. JDC) (The Court rejected the carrier’s attempt to establish the presumption of mailing of denial of claims forms through an affidavit of an employee reasoning, in part: “While Ms. Bernstein alleges she made her ‘afffiramations (sic) based upon [her] personal knowledge[,]’ she utterly ‘failed to set forth a basis to support her conclusory assertion,’ First Aid Occupational Therapy, PLLC v. State Farm Fire and Casualty Co, 19 Misc3d 143(A) (App. Term 2nd and 11th Jud. Dist. 2008), which is insufficient as a matter of law”); Montefiore Medical Center v. Government Employees Ins., 34 A.D.3d 771, 826 N.Y.S.2d 616 (2nd Dept. 2006)(Regarding affidavit of employee of carrier establishing carrier had mailed payments to other medical providers regarding assignee at issue, the Appellate Division ruled, “[f]urthermore, the affidavit and documentary evidence submitted by the defendant in opposition to the plaintiff's motion for summary judgment were in admissible form, since the affiant adequately stated her basis of knowledge for the facts asserted in her affidavit and laid a proper foundation for the introduction of the documents”); Hernandez v. Merchants Mut. Ins. Co., 14 Misc.3d 1215(A), 836 N.Y.S.2d 485 (Sup Ct New York County 2006) (“In addition to the absence of actual proof of mailing, James’ limited knowledge regarding MERCHANTS’ mailing procedures and the workings of the mail-room is insufficient to establish as a matter of law that the subject letter was properly addressed and mailed”); Andrew Carothers, M.D., P.C. v. Progressive Ins. Co., 14 Misc.3d 1210(A), 836 N.Y.S.2d 483 (Civ Ct New York County 2006)(“the Insurance Companies should produce the proper witnesses from the mailing room, who could testify that it is their duty to ensure that items are properly addressed and mailed or it is their duty to ensure compliance with said general office procedures or that they have actual knowledge that the mailing procedure, as part of the standard general office procedure, is followed).
The rule regarding proof of lack of receipt will be extrapolated from cases that require an explination of offices practices used to ensure proper delivery, such as: See Lumbermens Mutual Casualty Company v. Collins, 521 N.Y.S.2d 432 (1st Dept. 1987); Presutto v. Travelers Ins. Co., 851 NYS2d 66 (Civ. Ct New York County 2007); In the Matter of State-Wide Ins. Co., 608 NYS2d 274 (2nd Dept. 1994) (illustrating the appropriate manner used to establish proof of mailing through testimony regarding office procedures).
... SunTzu
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