2309, Bad Faith, and Proof of Claim

In no particular order…

Synergy First Med. PLLC v ELRAC Inc., 2010 NY Slip Op 50048(U)(App. Term, 1st, 2010)

In opposition to defendant’s prima facie showing of entitlement to judgment as a matter of law on the ground that plaintiff did not submit timely proof of its claim for first-party no-fault benefits (see 11 NYCRR 65-1.1; 65-2.4), plaintiff failed to raise a triable issue with respect to whether it had a “reasonable justification” for its delay in submitting such proof (see 11 NYCRR 65-3.3[e]). Plaintiff’s bald and unelaborated assertion that the delay was attributable to a staffing issue, i.e., the absence of an (unidentified) employee responsible for preparing claims because of “a family emergency,” is, under the circumstances presented, insufficient to raise a triable issue (see generally Bronx Expert Radiology, P.C. v Motor Vehicle Acc. Indem. Corp., 20 Misc 3d 140[A] [2008]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [2007]).

Compare this, what has become impossible hurdle for plaintiff and the First Department’s lax requirements for “law office failure” in 5015 motions.  Another issue, not discussed here is whether defendant ever considered plaintiff’s “reasonable justification.”

Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 50043(U)(App. Term, 1st, 2010)

The affidavit submitted by defendant of its employee (Esteves) established defendant’s entitlement to summary judgment dismissing this action to recover first-party no-fault benefits. Plaintiffs, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c). Specifically, plaintiffs correctly note that the affidavit failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey, the state in which the oath was administered (see CPLR 2309[c]; Real Property Law § 299-a[1]; PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Inasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained (Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; see Moccia v. Carrier Car Rental, Inc., 40 AD3d 504, 505 [2008]; see also Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, ___AD3d___, 2009 NY Slip Op. 09713 [Dec. 29, 2009]), we reverse the order and grant defendant’s motion for summary judgment dismissing the complaint on the conditions stated above (cf. Sandoro v Andzel, 307 AD2d 706, 708-708 [2003]).

JT called it.  2309(c) is dead. 

Devonshire Surgical Facility & Carnegie Hill Orthopedic Servs., P.C. v National Cont. Ins. Co., 2010 NY Slip Op 50042(U)(App. Term, 1st, 2009)

Plaintiffs’ proposed amended complaint does not specify any damages sustained by plaintiffs other than unpaid first-party no-fault benefits. Because plaintiff did not specify any consequential damages (see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of NY, 10 NY3d 187 [2008]) caused by defendant’s failure to pay plaintiffs’ claims for such benefits, the proposed amendment is palpably insufficient as a matter of law (see Peach Parking Corp. v 346 W. 40th St., LLC, 42 AD3d 82, 86 [2007]; Davis & Davis, P.C. v Morson, 286 AD2d 584, 585 [2001]), and Civil Court providently exercised its discretion in denying plaintiffs’ motion to amend.

Best loss ever.  A bad faith cause of action is viable.  I’ve written about this so many times, I’m almost sick of it.  I’ll add more on this issue later, when I’m not surrounded by psycho kids.  Sometimes I actually need to concentrate and think for a post.  Not often, but it happens.

7 Responses to 2309, Bad Faith, and Proof of Claim
  1. Anonymously Jaded
    January 16, 2010 | 5:06 pm

    Devonshire is wrong. Period.

    Also, here is the next question – what evidence must a provider marshal to show a reasonable excuse for a late claim submission? Except for one decision that came out a few months ago, it seems that this is almost an insurmountable hurdle for the providers.

  2. Sun Tzu
    January 18, 2010 | 11:43 am

    “Also, here is the next question – what evidence must a provider marshal to show a reasonable excuse for a late claim submission? Except for one decision that came out a few months ago, it seems that this is almost an insurmountable hurdle for the providers.”

    We may be left with the duress angle. Rogue SIU investigator holds physician hostage to prevent him from submitting claims in a timely fashion.

  3. Anonymously Jaded
    January 18, 2010 | 5:26 pm

    You are out of your mind. But, I must admit that your quixotic mindset might be close to correct on this issue.

  4. Sun Tzu
    January 19, 2010 | 10:06 am

    Quixotic is right, but not as much as the Zuppa.

  5. zuppa's pit
    January 19, 2010 | 3:07 pm

    “Hey. I resemble that remark.” (Three Stooges in some 40 or so 20 minute shorts — they did over 300)

    I am crawling out from under. Look for the real excitement to begin very shortly on the Pit and in the Courts and halls of government regulators.

    Hint: Everyone is under investigation by the Pit.

  6. Sun Tzu
    January 20, 2010 | 11:51 am

    Of course, that was a complement.

  1. Plaintiff failed to demonstrate a reasonable excuse for the late submission of its bill
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