Friday, August 21, 2015

A Day Late and Some Dollars Short

Great Health Care Chiropractic, P.C. v Elrac, Inc.
(App. Term, 2nd Dept., decided 8/5/2015)

Think late notice doesn't apply to no-fault claims?  Think again.

The prescribed New York mandatory personal injury protection endorsement found at 11 NYCRR § 65-1.1 sets forth this condition precedent to coverage:
Notice. In the event of an accident, written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstances of the accident, shall be given by, or on behalf of, each eligible injured person, to the Company, or any of the Company's authorized agents, as soon as reasonably practicable, but in no event more than 30 days after the date of the accident, unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation. 
Pursuant to 11 NYCRR § 65-2.4 essentially the same notice condition applies to self-insurers, such as the defendant Elrac, Inc., in this case.

Elrac denied payment to plaintiff assignor based on having received from assignor's attorney first notice of the accident in the form of a completed NF-2 on July 7, 2010, 31 days after the June 6, 2010 accident date.  In opposition to Elrac's cross motion for summary judgment, plaintiff submitted an affidavit by Dr. Jean Claude Compas, who stated that he had personally mailed, by certified mail, the NF-2 to Elrac on July 6, 2010, the 30th day following the accident date.  He alleged, with regard to mailing, that he personally takes all envelopes in the office to the post office and presents them to the clerk to be weighed and to determine the correct postage, and that he purchases the postage at that point. Plaintiff also submitted a "Track & Confirm" search result indicating that the envelope had been delivered to Elrac, but did not submit the certified mail receipt indicating the date on which the envelope had been brought to the post office.

In reply papers in further support of its cross motion, Elrac submitted a photocopy of the envelope bearing a certified mail number which matches the certified mail number alleged by Dr. Compas to be the certified mail number under which the NF-2 had been mailed. Both the postage and the postmark were dated July 7, 2010 (Day 31).

In AFFIRMING Queens County NYC Civil Court's order denying plaintiff's motion and granting Elrac's cross motion for summary judgment, the Appellate Term, Second Department for the 2nd, 11th, and 13th Judicial Districts, held:
In its brief, plaintiff concedes "the fact that the envelope was postmarked by the Post Office on July 7," but argues that it was mailed on July 6, 2010. However, this is not a case where a mailing was timely because the envelope was timely dropped into a mail box, even though it was not delivered to the post office and postmarked until a date beyond the prescribed time period (see CPLR 2103 [b] [2]; [f] [1]; Kresch v Saul, 29 AD3d 863 [2006]). Rather, plaintiff's own affidavit establishes that the NF-2 and notice of injury were delivered directly to a clerk at the post office for postage and mailing. Both the postage and the postmark are dated July 7, 2010, conclusively establishing that the documents were not mailed until that date. Therefore, they were not submitted to defendant within the time frame required by 11 NYCRR 65-2.4 (b).
Plaintiff also argues that defendant failed to prove that it had timely denied the bills. However, defendant submitted an affidavit by an employee of its third-party administrator, which affidavit sufficiently established the timely mailing of the denial of claim forms (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, the denial of claim forms advised plaintiff that the late notice of claim would "be excused should the applicant or the assignee provide reasonable justification for the failure to give timely notice." Defendant has established that no such justification was provided. Thus, we reject plaintiff's argument, based upon Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2009]), that, even if the submission of the notice of the accident was untimely by one day, such untimeliness is de minimis and should be excused. Consequently, as defendant timely denied the bills on the ground that there was a failure to comply with a condition precedent to coverage (see 11 NYCRR 65-2.4 [a], [b]), plaintiff's motion for summary judgment was properly denied and defendant's cross motion for summary judgment was properly granted.
So much for Dr. Compas' affidavit of having personally taken and presented the NF-2 mailing to the post office on July 6, 2010.  Draw your own conclusions.

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