Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co., 2008 NY Slip Op 51065(U) (Dist Ct Nassau County, First Dist)

The court first notes that, in a carefully worded paragraph, Ms. Absher attests that she is “familiar with the general business practices of New York Central today and in 2001. During 2001, as well as currently, it was/is New York Central’s general business practice to mail verifications and denials on the same date that they are generated.” [emphasis in original] (Absher Affidavit 1/9/08, p. 2) Conspicuously absent from Ms. Absher’s affidavit is any allegation that she is familiar with the Defendant’s record keeping or mailing practices as it existed in 2006, the year here in question. Ms. Absher clearly has not demonstrated her knowledge of such practices and procedures as they existed at the time here in question and cannot establish proper proof of mailing of the denials in question.

The above notwithstanding, the practice and procedure described by Ms. Absher, while it may be Defendant’s “standard office practice and procedure” Residential Holding Corp. v. Scottsdale Insurance Company, supra ., it is not one “used to ensure that items were properly addressed and mailed.” id.; See also: Nassau Insurance Company v. Murray, 46 NY2d 828, 414 NYS2d 117 (1978) ["office practice must be geared so as to ensure the likelihood that a notice ... is always properly addressed and mailed."]

In essence, Ms. Absher describes the procedure as an employee taking the denial form, placing it in an envelope which is in turn placed in a bin in a central location in the office, then taken to a bin in the Defendant’s mail room, the contents of which are subsequently taken from the mail room to the post office. When stripped of all of its excess verbiage, it appears that the Defendant’s mailing procedure is to place the denial form in an envelope and to have someone subsequently mail same. The fact that the envelope containing the denial form is handled by a number of the Defendant’s employees and makes a number of stops in the office before it is allegedly taken to the post office in no way ensures that the items are properly mailed.

Ms. Absher’s statements to the effect that “[t]he file maintained by the Defendant indicates that all of Defendant’s mailing procedures described are carried out in accordance with the procedures set forth above[,]” (Absher Affidavit 1/9/08, p. 7) and “I reviewed the Defendant’s computer log, and they accurately reflect … information for this claim, including the date the bills were received and the date the no-fault denials were mailed[,] (Absher Affidavit 1/9/08, p. 8-9) are, themselves, insufficient to establish the mailing of Defendant’s denial of claim forms. Westchester Medical Center v. Countrywide Insurance Company, 45 AD3d 676, 846 NYS2d 230 (2nd Dept. 2007); Hospital for Joint Diseases v. Nationwide Mutual Insurance Company, 284 AD2d 374, 726 NYS2d 443 (2nd Dept. 2001); Careplus Medical Supply Inc. v. Travelers Home and Marine Insurance Co., 7 Misc 3d 133(A), 801 NYS2d 231 (App.Term 2nd and 11th Jud. Dists. 2005) Such statements are conclusory and unsupported by any evidentiary proof. Moreover, these statements, based upon files and computer records which are not before this court, are hearsay and are not in admissible form. If the Defendant has such files and computer records, which adequately confirm the mailing of the denial of claim forms, then the Defendant has the obligation lay a proper foundation for such records, pursuant to CPLR §§ 4518 and 4539, and tender them in admissible form.

The Defendant relies upon the report of Dr. Thomas J. McLaughlin, who conducted a physical examination of the Plaintiff’s assignor on May 23, 2006, in an effort to establish the lack of medical necessity for the treatment in question. Dr. McLaughlin’s report, however, is “[f]atally missing … any mention of the applicable generally accepted medical/professional standard and the plaintiff’s departure therefrom.” American Chinese Acupuncture, P.C. v. State Farm Mutual Automobile Insurance Company, 18 Misc 3d 1125, 2008 NY Slip Op. 50205 (Civ. Ct. Richmond Co. 2008) The examination by the Defendant’s doctor notwithstanding, “its denial based on lack of necessity, … , was Conclusory [sic] unsupported by … an independent medical examination, setting forth a sufficiently detailed factual basis and medical rationale for the claim’s rejection (e.g. Choicenet Chiropractic P.C. v. Allstate Ins. Co., NYLJ, Mar. 7, 2003 [App Term, 2d & 11th Jud Dists]).” Amaze Medical Supply Inc. v. Eagle Insurance Company, supra .; See also: A.B. Medical Services PLLC v. Liberty Mutual Insurance Company, 10 Misc 3d 128, 809 NYS2d 480 (App. Term 2nd and 11th Jud. Dists. 2005)

AA Acupuncture Serv., P.C. v State Farm Mut. Auto. Ins. Co., 2008 NY Slip Op 51066(U) (Civ Ct City NY, NY County)

Therefore, the Appellate Term refused to affirm summary judgment even though it clearly thought that the plaintiff should not have pursued its claim when faced with the same evidence. If the Appellate Term thought the evidence of a staged accident was strong enough to consider sanctions against the plaintiff’s attorney for pursuing the claim but still refused to grant summary judgment to the defendant, then the only explanation is that there is a per se rule against summary judgment dismissing a claim based on staged accident. Absent a contrary decision in this Department, this Court, following A.M. Medical Services, denies defendant’s motion for summary judgment. Mountain View Coach Lines v Storms, 102 AD2d 663, 664, 476 NYS2d 918 (2d Dept 1984); People v Brisotti, 169 Misc 2d 672, 673, 652 NYS2d 206, 207 (App Term 1st Dept 1966); 545 West Co. v Schachter, 16 Misc 3d 431, 837 NYS2d 549 (Civ Ct, NY Cty, 2007).

Edit: For a full discussion of these cases check out the posts on CoverageCounsel here and here.