Medical Supply of NY Direct Servs. Corp. v State Farm Ins. Co.

Civil Court of the City of New York, Richmond County

Decided on April 13, 2026

Index No. CV-771552-25/RI

Mark Kagan, J.

The defendant State Farm Insurance Company has moved pursuant to CPLR §3212 seeking summary judgement dismissing the action on the grounds the assignor failed to provide further information sought by the defendant. The plaintiff has opposed the motion. Pursuant to CPLR §2219(a) the court has reviewed all the papers submitted including NYSCEF document numbers 1-22 and now renders the following determination.

On November 1, 2024 the assignor Yefim Zemelshteyn was involved in a motor vehicle accident and sought medical treatment. The plaintiff provided medical services in the amount of $1,689.50 and sought payment from the defendant. The defendant refused payment on the grounds the assignor failed to respond to verifications for further information. The plaintiff commenced this action seeking payment and the defendant duly answered. The defendant has [*2]now moved seeking summary judgement dismissing the action arguing there are no questions of fact the assignor failed to provide any information sought. The plaintiff has opposed the motion arguing the verifications sent were invalid and the motion, therefore, must be denied.

Conclusions of Law

Concerning first party no-fault benefits, an insurer may move seeking summary judgement dismissing the action on the grounds additional verification information was sought from the plaintiff and not provided (Eagle Surgical Supply Inc., v. Travelers Indemnity Company, 29 Misc 3d 129(A), 958 NYS2d 307 [Supreme Court Appellate Term Second Department 2010]).

The defendant seeks summary judgement on the grounds the plaintiff failed to respond to requests for verification. Pursuant to 11 NYCRR §65-3.5(b) any request by an insurer for additional information must be served within fifteen days of the receipt of the necessary verification forms (see, Prestige Medical P.C. v. Travelers Home and Marina Insurance Company, 56 Misc 3d 284, 995 NYS2d 467 [Civil Court Kings County 2014]). Further, if a provider fails to respond, the insurer must send a second request within ten days of the scheduled date of the missed examination scheduling a new examination date (11 NYCRR §65-3.6(b), MSB Physical Therapy P.C. v. Nationwide Insurance, 72 Misc 3d 1215(A), 149 NYS3d 884 [Civil Court Kings County 2021]).

In this case a bill was sent to the defendant for medical services on February 3, 2025.A verification request was mailed on February 7, 2025 and again on March 10, 2025 (see, Affirmation of Kate Cornell, ¶21 [NYSCEF Doc. No. 7]). These notices were all timely.

To succeed on a motion for summary judgement for the failure of an individual to respond to verification requests, there must be evidence the requests were sent and that the party failed to provide the information and has failed to provide any reasonable justification for failing to comply (Burke Physical Therapy P.C. v. State Farm Mutual Automobile Insurance Company, 75 Misc 3d 143(A), 1705 NYS3d 821 [Appellate Term Second Department 2022]).

The plaintiff does not dispute the verifications were not answered. Rather the plaintiff argues the verification requests were deficient for two distinct reasons. First, the plaintiff asserts the affirmation supporting compliance with the insurer's policies and procedures regarding mailing did not contain all necessary information. Specifically, the affirmation failed to explain the basis for any verification requests. Second, the affirmation was insufficient since the affiant, who provided the necessary information concerning mailing procedures, did not reside in the same state wherein the notices were mailed. Therefore, the affiant could not possibly opine about procedures that may exist hundreds of miles away. To properly address these concerns a review of the relevant law concerning mailings is necessary.

In Dunlop v. U.S., 165 US 486, 17 S.Ct 375 [1897] the Supreme Court held that proof of a proper mailing gives rise to a presumption the items were received. The court explained that "where a question is made whether a certain paper, or other document, has reached the hand of the person for whom it is intended, proof of a usage to deliver such papers at the house, or of the duty of a certain messenger to deliver such papers, creates a presumption that the paper in question was actually so delivered. Business could hardly be carried on without indulging in the presumption that employÉs, who have certain duties to perform, and are known generally to perform such duties, will actually perform them in connection with a particular case. Thus, if it be shown that a letter, properly stamped, has been mailed, there is a presumption that it reached [*3]the person addressed" (id). This presumption, like all presumptions, are "well known and frequently recognized in the law. Such presumptions are founded upon the experience of human conduct in the course of trade and business, under the promptings of interest or public responsibility" (Knickerbocker Life Insurance Company v. Pendelton, 115 US 339, 6 S.Ct 74 [1885]).

Likewise, in the No-Fault context, proof that a letter was properly mailed creates a rebuttable presumption the letter was received by the addressee (see, Viviane Etienne Medical Care, P.C. v. Country-Wide Insurance Company, 25 NY3d 498, 14 NYS3d 283 [2015]). Concerning the proof necessary to establish the mailing, Gardam & Son v. Batterson, 198 NY 175, 91 NE 371 [1910] established the appropriate standards. In that case, the court considered whether certain letters had been mailed by an agent who then died. The court denied the admissibility of the letters holding that "there was no proof of an actual deposit of the originals in the post office and there was no sufficient proof of a course of office practice, or of business, from which a presumption might be legally indulged" (id). Thus, the oft cited two-pronged requirement to establish any mailing, namely, proof of an actual mailing or proof of office practices and procedures that insure items are properly addressed and mailed (see, e.g., New York and Presbyterian Hospital v. Allstate Insurance Company, 29 AD3d 547, 814 NYS2d 687 [2d Dept., 2006]).

In this case, the defendant submitted the affidavit of Kate Cornell, a claims specialist employed by State Farm who submitted an affidavit which first states that State Farm's procedures dealing with No-Fault claims are uniform throughout the company (see, Affirmation of Kate Cornell, ¶1 [NYSCEF Doc. No 7]). She further provided detailed procedures for receiving and sending mail associated with any New York No-Fault claims. These procedures surely satisfy the requirement of establishing policies and procedures that insure items are properly mailed (Nationwide Affinity Assurance Company of America v. George, 183 AD3d 755, 123 NYS3d 626 [2d Dept., 2020]).

In opposition, the burden shifts to the plaintiff in efforts to rebut the presumption that verifications for more information were properly mailed (Residential Holding Corp., v. Scottsdale Insurance Company, 286 AD2d 679, 729 NYS2d 776 [2d Dept., 2001]). The plaintiff argues the defendant failed to provide the insurance company's "'regular business practices and procedures' used to request additional verification" (see, Affirmation in Opposition, ¶9 [NYSCEF Doc. No. 19]). Thus, the plaintiff argues the affirmation of Ms. Cornell fails to establish the insurer's policies and procedures concerning proper mailings because the affirmation does not describe the way in which the verification requests are created. However, that information, the rationale why the verification was sent, has nothing whatever to do with the practices and procedures for sending mail. The plaintiff's objection lies with the failure of the insurer to provide the underlying basis for sending the verification at all. However, that information is unrelated to the procedures for sending mail and its absence does not mean the insurer has failed to adequately explain its policies and procedures concerning mailings.

Indeed, the No-Fault regulations permit an insurer to demand "all items necessary to verify the claim directly from the parties from whom such verification is requested" (11 NYCRR §65-3.5(c)). In fact, there are no limits to the information an insurer may request other than the limitation found in 11 NYCRR §65-3.2(c). That regulation states that an insurer should not demand verification of facts "unless there are good reasons to do so" (id). There are no specific No-Fault regulations that provide any mechanism for a medical provider to contest the [*4]verification sought on the grounds it is improper or unnecessary (Burke 2 Physical Therapy P.C. v. State Farm Mutual Automobile Insurance Company, 71 Misc 3d 1229(A), 146 NYS3d 468 [Civil Court Kings County 2021]). It is clear the information sought must have some rational relationship to the specific claims. Therefore, certain requests for verification are obvious, no explanation is required and are per se reasonable. For example, "requests for medical records for the treatment in question, letters of medical necessity for the testing or treatment, copies of x-ray or MRI films or test results" (Garden State Anesthesia Associates PA v. Progressive Casualty Insurance Company, 41 Misc 3d 996, 971 NYS2d 858 [District Court Nassau County 2013]). Likewise, a request to establish medical necessity is reasonable pursuant to 11 NYCRR §65-3.2(c) (Lenox Hill Radiology v. Global Liberty Insurance, 20 Misc 3d 434, 858 NYS2d 587 [Civil Court New York County 2008]).

Thus, while a medical provider can object to the verifications sought, in appropriate circumstances, those objections focus on the substance of the information requested, not the manner in which the requests were sent. As long as there is proof supporting the presumption of a proper mailing the insurer has satisfied its burden. The insurer is under no obligation to divulge its strategies or suspicions to the medical provider and surely the basis for such requests are not included with the information supporting valid mailings.

Likewise, there is no merit to the argument that Ms. Cornell is unable to provide accurate mailing procedures because the mailings are performed in a facility in another state. There is no requirement the person affirming the mailing policies and procedures must actually be present and physically observe them. Rather, the person must have familiarity with the procedures and those procedures must be uniform throughout the company. Ms. Cornell's affirmation confirms the uniformity of the policies of the insurance company and states that she maintains sufficient information regarding the uniformity of the mailing procedures. This remains true whether Ms. Cornell is merely one floor away from the actual mailing center, or many miles away. To argue otherwise would be to simply second guess the veracity of Ms. Cornell's affirmation. Any party may surely object to the veracity of any witness with proper evidence. However, to rebut the presumption of a proper mailing the medical provider must do more than merely allege the witness lives in a different state. That may be true but that does not, in any way, impugn the veracity of the affidavit concerning mailing procedures.

Therefore based on the foregoing, there is no question of fact the verifications seeking information remain unanswered. Thus, the motion seeking summary judgement dismissing the action is granted.

So ordered.

Dated: April 13, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC