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Lenox Hill Radiology, Pc A/A/O Edward Bredy v. Tri-State Consumer Insurance Company


December 30, 2010


Per curiam.

Lenox Hill Radiology, PC v Tri-State Consumer Ins. Co.

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on December 30, 2010

PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered on or about September 9, 2008, after a non-jury trial, in favor of plaintiff and awarding it damages in the principal sum of $4,390.16.

Judgment (Peter H. Moulton, J.), entered on or about September 9, 2008, reversed, with $30 costs, and complaint dismissed.

Upon the trial of this action to recover payment of first-party no-fault benefits arising from plaintiff's performance of four separate MRIs of plaintiff's assignors, Civil Court awarded judgment in plaintiff's favor in the principal amount of $4,390.16. The principal defense advanced by defendant-insurer at trial was that plaintiff's claims were premature because plaintiff had failed to respond to defendant's verification requests (see 11 NYCRR § 65-3.5[b]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2009]). Upon review of the record, we conclude that defendant presented evidence of its office mailing practice sufficient to establish that the verification requests had been mailed and presumably received by plaintiff. In this posture, and in the absence of any claim or showing that plaintiff ever responded to defendant's timely requests for verification, we reverse the judgment appealed from and dismiss the action as premature.

At trial, defendant presented the testimony of an experienced claims examiner, Jennifer Piccolo, who both personally prepared the initial and follow-up verification requests here at issue and possessed first-hand knowledge of defendant's standard office mailing practice. The witness's credible and consistent account of the mailing procedures generally followed by defendant, including how the mail was systematically picked up during the work day, when it would "go out," and what steps would be taken if a verification letter was returned as undeliverable (an event which, the witness noted, did not occur here), "obviated the necessity of producing a witness with personal knowledge of the actual mailing" of defendant's verification letters (see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [2004]). Nor was it incumbent upon defendant to produce a witness, such as a mail clerk or other clerical employee, whose duty it was to ensure compliance with its mailing procedures or who possessed personal knowledge of such compliance (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [2007]).

Having established its routine and reasonable office practice, defendant met its burden to establish that the verification letters were mailed to (and presumably received by) plaintiff. Plaintiff not only failed to produce any countervailing evidence to rebut the presumption of receipt, but has not at any time affirmatively denied receipt of the verification letters.

Before concluding, we would be remiss in failing to note that the facts and circumstances of this action do much to illustrate the disturbing reality that first-party no-fault benefits litigation has become the antithesis of what was supposed to be an expeditious and simplified process for the payment of medical costs for injuries sustained in motor vehicle accidents (see Walton v Lumbermans Mutual, 88 NY2d 211, 214 [1996]). Too often, lawsuits with a value akin to a small claims action become bogged down by an insistence by one party or another that mailing of routine forms be established with scientific precision, asking judges, already burdened to the breaking point with the veritable legion of no-fault cases overflowing from our court dockets (while very able arbitrators remain underutilized), to require multiple witnesses to be summoned to the courthouse, merely to establish a presumption of mailing, even in the absence of an express denial of receipt of the disputed correspondence. Unfortunately, this class of cases has spawned a body of "gotcha" jurisprudence, marked by a near manic preoccupation with form over substance.

How we have reached this sorry state is of little moment. Perhaps all branches of government need to call a "time out" and, working together, endeavor to construct a workable process to achieve what the framers of the No-Fault statute had in mind when they sought to establish a simplified and expeditious process to reimburse those of our citizenry injured in automobile accidents. For sure, the system now in place is not achieving that laudable aim.

Schoenfeld, J. (dissenting)

I fully agree with the majority's sentiment that it is time for a change in no-fault litigation, which has become overly protracted and wasteful. Clearly, a streamlined process that yields timely, substantive results to ensure reimbursement, when appropriate, is needed. In the present case, all that was required at trial was the testimony of an individual with knowledge of defendant's standard mailing practice. As this was not done, however, I respectfully dissent and would affirm the trial judge's finding in favor of plaintiff.

At trial, defendant did not dispute that it received plaintiff's bills, but averred that plaintiff failed to respond to its request for verification. In support thereof, defendant offered the testimony of Jennifer Piccolo, an experienced claims examiner.

Ms. Piccolo testified to having reviewed plaintiff's claims, and stated why further verification was needed. As a result, she prepared verification letters and placed them in "a bin slot...within the department," to be "picked up by the clerical department." She further testified that if mail was not delivered and came back to her office, the address would be checked, and if it was wrong, it would be corrected and re-mailed. However, Ms. Piccolo candidly admitted to not knowing the mailroom procedure: Q: Do you have personal knowledge of the actual policies of the people who handle that mail that's returned?A: Personal knowledge, yes.Q: Personal knowledge as in you observe them do their day to day job with respect to... receipt of mail returned?A: No.Q: Nor with any of their other responsibilities with respect to mailing, correct?A: Correct.

It is well established that the decision of the fact-finding court should not be disturbed unless it is obvious that the court's conclusion could not be reached under any fair interpretation of the evidence. Frame v. Maynard, 78 AD3d 508 (1st Dept. 2010). Further, the burden is on the insurer to establish proper and timely mailing of verification requests. Westchester Med. Ctr. v. Progressive Cas. Ins. Co., 6 Misc 3d 1039(A) (Dist. Ct. Nassau County, 2005); see Lehrer McGovern Bovis, Inc. v. Public Serv. Mut. Ins. Co., 268 AD2d 388 (1st Dept. 2000).

As noted in Badio v. Liberty Mutual Fire Ins. Co., 12 AD3d 229 (1st Dept. 2004): "An insurer is entitled to a presumption that a [request] was received when the proof exhibits an office practice and procedure... which shows that the [requests] have been duly addressed and mailed " (emphasis added). In that case, "Liberty Mutual did present the testimony of an employee who possessed personal knowledge of the office mailing practice, including how the mail was picked up and counted, and how the names and addresses on each item were confirmed." Id. at 230.

Clearly Ms. Piccolo, who placed her letters in a bin slot within her own particular department, did not know whether such letters were put in a postal box that day. Nor did she have personal knowledge regarding even the basic mailing practice and procedure of her company. In Westchester Med. Ctr. v. Countrywide Ins. Co., 45 AD3d 676 (2d Dept. 2007), defendant contended that a claim for payment was premature because plaintiff failed to respond to its verification requests. However, the Court, in holding that the statements by a supervisor employed in defendant's claims department were insufficient, noted that she "had no personal knowledge that the verification requests were actually mailed on the dates they were issued." The Court further stated that "her conclusory allegations regarding the defendant's office practice and procedure failed to establish that [it] was designed to ensure that the verification requests were ... properly mailed." Id. at 676-7. Accord, Modern Psychiatric Serv. P.C. v. Progressive Ins. Co., 10 Misc 3d 145(A) (App Term 2d Dept 2006); Careplus Med. Supply Inc. v. Travelers Home & Marine Ins. Co., 7 Misc 3d 133(A) (App Term 2d Dept 2005).

Accordingly, the judgment in favor of plaintiff should not be disturbed.


Decision Date: December 30, 2010


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