Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Mut. Auto. Ins Co., 2010 NY Slip Op 51090(U) (District Court Of Nassau County, Second District)
The papers submitted by defendant in support of its motion for summary judgment include proof of plaintiff’s admitted receipt of defendant’s denial, grounded upon a defense of lack of medical necessity. Although plaintiff’s counsel questions the sufficiency of defendant’s proof that the denial was mailed timely, cf Elmont Open MRI v. Progressive Cas. Ins. Co., 2009 NY Slip Op 50693 (Dist Ct Nassau Co.), plaintiff is in no position to contest the adequacy of defendant’s proof of timely mailing under the circumstances at bar. At least in cases, like this one, where plaintiff’s interrogatory responses admit receipt of the denial but aver that plaintiff keeps no record of the dates when denials are received, plaintiff should not be allowed to dispute the timeliness of the denial without making an affirmative allegation that the denial was received on or after a particular date. In the absence of such an affirmative allegation, the Court may properly assume that the denial was mailed on or about the date shown on the denial. Federal Courts routinely assume that notices are duly mailed “on the date shown on the notice”[1] unless the recipient presents “sworn testimony or other admissible evidence” which provides a factual basis for challenging the assumption. See, e.g. Sherlock v. Montefiore Med. Center, 84 F3d 522, 526 (2nd Cir, 1996).
Moreover, since the denial presumably was received in an envelope which included evidence of a date of postmarking or postal metering, the Court can properly draw an adverse inference from plaintiff’s failure to retain and preserve the envelope. It appears well settled that a party’s failure to keep and produce “the postmarked envelope” may result in an “adverse inference” in cases involving an issue of timely mailing. See, e.g. Lewis v. U.S., 144 F3d 1220, 1223 (9th Cir. 1998).[2]
Consequently, the Court need not reach the issue of whether defendant’s proof of timely mailing of its denial strictly satisfied the requirements of St. Vincent’s Hosp. v. GEICO, 50 AD3d 1123 (2d Dept. 2008),[3] and its progeny.
The footnotes are mine.
[1] The complete quote from the Second Circuit is: “And normally it may be assumed, in the absence of challenge, that a notice provided by a government agency has been mailed on the date shown on the notice.” (Emphasis added). The Second Circuit gleaned this from a footnote, which said “the presumed date of receipt of the notice was January 30, 1981. Fed.Rule Civ.Proc. 6(e).”
[2] This is the section of the decision that the Court is referring to:
The sure way of refuting the taxpayers’ contention was to produce the postmarked envelope. The Service had not preserved it. This failure tells against the Service, for Congress has specified that the postmark “shall be deemed to be the date of delivery.” 26 U.S.C. § 7502(a)(1). Once the letter is mailed, control of this vital evidence is completely in the hands of the Service. When the Service destroys or fails to keep the evidence, the Service must bear the adverse inference to be drawn.
26 U.S.C. § 7502(a)(1) is part of the Internal Revenue Code. The heading is “Timely mailing treated as timely filing and paying.” Subsection (a)’s heading is “General rule” and (1)’s heading is “Date of delivery.” Under “Date of Delivery” the statute reads as follows:
If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under authority of any provision of the internal revenue laws is, after such period or such date, delivered by United States mail to the agency, officer, or office with which such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of delivery or the date of payment, as the case may be.
Incidentally, the 9th Circuit was recently reversed four times in one day.
[3] This decision remains good law and is on point.
