NO SHOWS AT EUO

NO SHOWS AT EUO

Progressive Casualty Insurance Company v. Metro Psychological Services, P.C., 2016 WL 2337939

Insurer brought a DJ action against provider based upon No Shows at EUO.  Defendant cross moved for summary judgment.  Appellate Division reversed the lower court based upon the fact that insurer failed to establish that the scheduling letters were timely and properly mailed.  The Court stated as follows on the “presumption of mailing”:

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country–Wide Ins. Co., 114 AD3d 33, 46, affd 25 NY3d 498 [internal quotation marks omitted]; see Matter of Rodriguez v. Wing, 251 A.D.2d 335). “ ‘The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed’ ” (New York & Presbyt. Hosp. v. Allstate Ins. Co., 29 AD3d 547, 547, quoting Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 680; see Viviane Etienne Med. Care, P.C. v Country–Wide Ins. Co., 114 AD3d at 47). However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed (see Nassau Ins. Co. v. Murray, 46 N.Y.2d 828). “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” (id. at 829–830).

As to the attorney’s affirmation:

The affirmation of the plaintiffs’ counsel contained conclusory allegations regarding his office practice and procedure, and failed to establish that the practice and procedure was designed to ensure that the EUO letters were addressed to the proper party and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051–1052; Westchester Med. Ctr. v. Countrywide Ins. Co., 45 AD3d 676, 676–677; New York & Presbyt. Hosp. v. Allstate Ins. Co., 29 AD3d 547, 548; Hospital for Joint Diseases v. Nationwide Mut. Ins. Co., 284 A.D.2d 374, 375).

Leave Comment

Your email address will not be published. Required fields are marked *