August 24, 2010

Ortho-Med Surgical Supply, Inc. v MVAIC (2010 NY Slip Op 51526(U))

https://www.beynensonlaw.com/case-law/ortho-med-surgical-supply-inc-v-mvaic-2010-ny-slip-op-51526u/

Court
Appellate Term, Second Department
Decided
August 24, 2010
Citation
2010 NY Slip Op 51526(U) · 28 Misc 3d 139(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Followed in 4 later decisions (see Cited by)
Issues
Timeliness and preclusion
Legal questions
Proof of mailing (see the maps)
Cite as
Ortho-Med Surgical Supply, Inc. v MVAIC, 28 Misc 3d 139(A), 2010 NY Slip Op 51526(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

MVAIC's affidavit established timely mailing of its denial through a detailed description of office practices based on personal knowledge. The provider's sole appellate challenge concerned the sufficiency of that affidavit. The majority found that the claims representative described the standard procedures used to ensure proper mailing in enough detail to establish timely denial. The Appellate Term, Second Department, affirmed the order granting MVAIC summary judgment dismissing the complaint. A dissent would have reversed and denied the motion because the affiant did not demonstrate firsthand knowledge of mailroom procedures and, in the dissent's view, merely concluded that the denial was sent.

Reported in New York Official Reports at Ortho-Med Surgical Supply, Inc. v MVAIC (2010 NY Slip Op 51526(U))

[*1]
Ortho-Med Surgical Supply, Inc. v MVAIC
2010 NY Slip Op 51526(U) [28 Misc 3d 139(A)]
Decided on August 24, 2010
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 24, 2010
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : STEINHARDT, J.P., PESCE and RIOS, JJ
2009-1076 K C.

Ortho-Med Surgical Supply, Inc. as Assignee of MARIA GONZALEZ, Appellant,

against

MVAIC, Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered September 19, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.


ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint. The sole issue raised by plaintiff on appeal is the sufficiency of the affidavit executed by MVAIC’s claims representative to establish that the denial of claim form was mailed pursuant to MVAIC’s office practices and procedures. As the affiant described, in detail, based on the affiant’s personal knowledge, defendant’s standard office practices and procedures used to ensure that said denial of claim form was properly mailed, the affidavit of defendant’s claim representative sufficiently established the timely mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order granting MVAIC’s motion for summary judgment is affirmed.

Steinhardt, J.P., and Pesce, J., concur.

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to reverse the order and deny defendant’s motion for summary judgment dismissing the complaint in the following memorandum: [*2]

The issue on appeal is whether a timely denial was mailed to plaintiff.

Defendant presented an affidavit from a claims representative attesting to a procedure wherein a denial is placed in an addressed envelope and then dropped in the claims department’s “outgoing mail basket.” According to the claims representative, the contents of the mail basket are collected daily by a mailroom employee, who then affixes postage to the envelopes and “puts it in the mailbox” for delivery by the U.S. postal service. In my opinion, such an affidavit is insufficient to demonstrate mailing, for it merely concludes that the mail is sent. Defendant’s affiant did not demonstrate firsthand knowledge of the procedures of the mailroom to establish that the denial had been mailed to plaintiff (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227 [1995]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been denied.
Decision Date: August 24, 2010

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