| New York No Fault Paradise

If you don’t know about this, you should.

Assembly Bill A10739 / Senate Bill S7518

Written on May 2, 2010 by Dave Gottlieb

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Class Actions

Written on April 30, 2010 by Dave Gottlieb

Amer- A-Med Health Prods., Inc. v GEICO Ins. Co., 2010 NY Slip Op 31032(U) (Sup Ct, Nassau County)

For some background, read the Globe decision. If anyone feels like sending me the Amer-A-Med motion papers, I’d appreciate it.

Because the decision is a PDF, I can’t cut and paste. So I’m going to take a stab at writing a post with substance.

What’s this all about?

“[U]pon receipt of theclaims, GEICO never issued a denial but rather paid the claims in a reduced amount calculated inaccordance with what GEICO unilaterally determined to be the prevailng market price in the industry.” Or in other words, GEICO paid what it wanted and told the providers to screw off. It reminds me of another class action: Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 130 S.Ct. 1431 (2010).

Amer-A-Med’s motion

Not too long ago Globe wanted to be the class representative. The Appellate Division said “No” and Amer-A-Med moved to intervene to try to get the class certified. The motion was granted. Amer-A-Med filed an amended complaint. Geico filed an amended answer. Amer-A-Med made a motion to dismiss some of defendant’s affirmative defenses and counterclaims under CPLR 3211(a)(6)(7)(8) and 3211(b).

The Court made short work of Amer-A-Med’s argument that Geico’s first affirmative defense (Failure to state a cause of action) had to made in a motion and could not be in the answer. Oddly enough, this was the rule in the Second Department, up until Butler v Catinella, 58 AD3d 145 (App. Div., 2nd, 2008). That portion of plaintiff’s motion was denied.

Next was Geico’s third affirmative defense, that “Plaintiff and other members of the purported calss may be barred, in whole or in part, from recover to the extend that they engaged in staged or phony automobile ‘accidents.” The Court found that “while GEICO claims that it has uncovered evidence of fraud…it does not provide even the most rudimentary facts surrounding this assertion.” That affirmative defense was dismissed. The bold is mine.

The fourth affirmative defense was that the AOBs were invalid. The Court dismissed it for obvious reasons (no denials or verification requests).

Geico’s tenth affirmative defense was that “Plaintiff and other members…may be barred, in whole or in part, from recovery based upon the doctrine of unclean hands.” The defense was, more or less, related to defendant’s “documented costs” argument, which the Court noted was rejected by the Appellate Division. Because Geico couldn’t maintain a defense on that ground, the Court dismissed that affirmative defense as well.

The twelfth and twenty-first affirmative defenses were dismissed for the same reasons that the third and tenth affirmative defenses were dismissed.

Geico’s first and second counterclaims were fraud related. The Court found that the “counterclaims interposed herein by GEICO do not contain any particularized allegations as to which members of the putative class engaged in fraudulent activities and are therefore insufficient to sustain and action sound in fraud.” And, in any event, the counterclaims were contingent, which is not permissible.

What You’ve Been Missing

Written on April 25, 2010 by Dave Gottlieb

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I had a different topic in mind when I wrote the title. But in the few seconds before I started writing, I decided that the other idea would take too much time. Instead of “what you’ve been missing.” I’m giving you some self-improvement nonsense that I’ve been reading here and there. Mostly here.

Empty your library. But don’t throw everything out. That would be stupid. Reading, of course, helps with writing. Remember, it isn’t what you write with, it’s you. Maybe you’re hung-up on the semicolon, which is understandable. It is the most feared punctuation on earth. At the very least, stop procrastinating. Then again, keep at it. It might work for you. If that doesn’t work, just follow these seven steps to greatness. Or follow the rules. Fed up? Just Quilt. You don’t need to give two weeks notice. If you take out a letter, try not to be “that guy” at your interviews. This is a lot to take in at once, i know. If you need a distraction, check out these sweet website designs or go hang with BoredPanda.

Done with the distractions? Great. Thanks for coming back.

If you are reading this blog, you have probably seen me in court at one point. And if you’ve seen me in court, I’ve probably called you stupid or worse. More likely worse. Don’t be mad. One, you deserve it. Two, I don’t matter. What most people think of your work, doesn’t matter. None of this changes the fact that are stupid, or worse. Sorry Tim.

If after all this you are thinking “man, I wish I could find more sites like these,” Mr. Self Development.com has a list for you. Try reading some motivational quotes to remind you that whatever you’re doing, you’re not doing it right.

Would you believe that I’ve been writing this post for over half an hour. In all this craziness, I forgot whether I took Excedrin. I brought some to the computer with the express purpose of taking at soon as I sat down. So I sat down and forgot whether I took it. Can you OD on caffeine? This guy can’t.

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Decisions Decisions Decisions

Written on April 25, 2010 by Dave Gottlieb

Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 2010 NY Slip Op 50716(U) (App. Term, 2nd, 11th & 13th Jud. Dists., 2010)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both the motion and the cross motion. Insofar as is relevant to this appeal, the Civil Court found that defendant had established that it had timely and properly denied the claims at issue after requesting that plaintiff appear for an examination under oath (EUO), and held that “the sole issue remaining to be determined at trial is the EUO no-show as a proper basis of denial” (see CPLR 3212 [g]). Defendant appeals from so much of the order as denied its cross motion for summary judgment.

In opposition to plaintiff’s motion and in support of its cross motion for summary judgment, defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO. Counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for duly scheduled EUOs (see W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The appearance of the eligible injured person’s assignee at an EUO upon a proper request is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at [*2]722; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]).

In light of the foregoing, and the Civil Court’s CPLR 3212 (g) findings that the EUO requests were mailed and that the claims were timely denied, from which no appeal has been taken by plaintiff, the Civil Court should have granted defendant’s cross motion for summary judgment dismissing the complaint.

Staten Is. Chiropractic Assoc., PLLC v MVAIC, 2010 NY Slip Op 50698(U) (App. Term, 2nd, 11th & 13th Jud. Dists., 2010)

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which struck plaintiff’s assignor, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App [*2]Term, 2d & 11th Jud Dists 2008]; Complete Med.Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Dists 2008]). Until plaintiff exhausts its remedies, its claim against MVAIC is premature (Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U]).

Parkway Anesthesia Assoc., PLLC v MVAIC, 2010 NY Slip Op 50713(U) (App. Term, 2nd, 11th & 13th Jud. Dists., 2010)

The filing of a timely notice of claim is a condition precedent to the right to apply for payment from MVAIC (see Insurance Law § 5208 [a]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]). Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a “covered person” who is entitled to recover no-fault benefits from MVAIC (see Insurance Law § 5221 [b] [2]; Ocean Diagnostic Imaging v Motor [*2]Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]).

MVAIC’s submissions in support of its motion for summary judgment made a prima facie showing that plaintiff’s assignor had failed to timely file a notice of claim (see Insurance Law § 5208 [a]). Plaintiff failed to demonstrate that there has been a timely filing of a notice of claim, a filing of the notice of claim as soon as it was reasonably possible do so, or that leave was sought to file a late notice of claim (see Insurance Law § 5208 [b], [c]). As a result, the Civil Court should have granted MVAIC’s motion for summary judgment dismissing the complaint. Accordingly, the judgment is reversed, the order entered January 15, 2009 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50702(U) (App. Term, 9th & 10th Jud. Dists., 2010)

“Where a plaintiff’s noncompliance with a disclosure order does not result in a dismissal with prejudice, or an order of preclusion or summary judgment in favor of defendant so as to effectively close plaintiff’s proof, dismissal resulting from the noncompliance is not a merits determination so as to bar commencement of a second action” (Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615-616 [1985]; Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51552[U] [App Term, 2d & 11th Jud Dists 2008]; see Daluise v Sottile, 40 AD3d 801, 802-803 [2007]; Aguilar v Jacoby, 34 AD3d 706, 707 [2006]). Plaintiffs’ prior action was dismissed pursuant to CPLR 3126 (3), but the dismissal order did not state that the dismissal was with prejudice, nor does a review of the record reveal the existence of a preclusion order. Consequently, plaintiffs were not barred from [*2]commencing a second action. Accordingly, the District Court properly denied defendant’s pre-answer motion to dismiss the complaint based on the doctrine of res judicata.

BYE BYE DJx2

Written on April 22, 2010 by Dave Gottlieb

I don’t feel like thinking of another title.

Matter of AutoOne Ins. Co. v Valentine, 2010 NY Slip Op 03319, (App. Div., 2nd, 2010)

Furthermore, the doctrine of collateral estoppel is not applicable here because the issue of whether the tortfeasor’s vehicle was insured at the time of the accident never was litigated and decided in the Pennsylvania action (see generally Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 71). The Pennsylvania court order which determined that the tortfeasor’s policy was void ab initio was made on the default of Rodriguez (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457; Chambers v City of New York, 309 AD2d 81; Holt v Holt, 262 AD2d 530, 530; Rourke v Travelers Ins. Co., 254 AD2d 730, 731; Pigliavento v Tyler Equip. Corp., 233 AD2d 810, 811). Thus, the doctrine of collateral estoppel does not preclude the petitioner from litigating that issue in this proceeding.

Mallela DJ in Civil Court?

Written on April 18, 2010 by Dave Gottlieb

Five Boro Psychological Servs., P.C. v AutoOne Ins. Co., 2010 NY Slip Op 20131 (App. Term, 2nd, 11th & 13th Jud. Dists., 2010)

Furthermore, there is no merit to plaintiff’s contention that the Civil Court lacks subject matter jurisdiction to address a defense predicated upon Mallela because it would amount to a declaratory judgment over which only the Supreme Court has jurisdiction pursuant to CPLR 3001. Defendant is clearly not seeking a declaratory judgment. Rather, defendant seeks a determination as to whether plaintiff established its prima facie entitlement to summary judgment. In any event, the Civil Court would have subject matter jurisdiction in a declaratory judgment involving an obligation of an insurer in which the underlying amount sought to be recovered did not exceed $25,000 (see Rivera v Buck , 25 Misc 3d 887 [App Term, 2d, 11th & 13th Jud Dists 2009]).

The cite is wrong for Rivera v. Buck. It should be 25 Misc.3d 27. If you click on that link you will see that Rivera involved a case that was 325(d)’d to Civil Court and where Buck brought in and insurance company as a third party defendant, asking for a declaratory judgment that the insurance company had to defendant and indemnify. The insurance company moved for summary judgment. The motion was granted, but the Appellate Term reversed, finding that the Civil Court didn’t have jurisdiction to even consider the third-party action.

We reverse the Civil Court’s order and dismiss the motion by Mount Vernon upon a finding that the Civil Court lacked jurisdiction to consider either the Bucks’ third-party complaint as against Mount Vernon seeking a declaratory judgment that Mount Vernon was obligated to defend and indemnify them, or Mount Vernon’s counterclaim for a declaratory judgment. The parameters of the Civil Court’s jurisdiction are strictly prescribed by statute. CPLR 325 (d) provides that actions may be removed to the Civil Court without consent where the Civil Court would have had jurisdiction but for the amount of “damages demanded.” The third-party action, insofar as relevant to this appeal, sought no damages but, rather, a declaratory judgment and, thus, the Civil Court’s jurisdiction was governed by CCA 212-a, which states:

“The court shall have the jurisdiction defined in section 3001 of the CPLR to make a declaratory judgment with respect to any controversy involving the obligation of an insurer to indemnify or defend a defendant in an action in which the amount sought to be recovered does not exceed $25,000.”

A clear reading of CCA 212-a establishes that the Civil Court lacked subject matter jurisdiction, as the third-party complaint against Mount Vernon requested a declaratory judgment involving an obligation of an insurer in which the underlying amount sought to be recovered exceeded $25,000. This court’s authority is merely to rule on the validity of the Civil Court’s order, not to reverse the Supreme Court’s CPLR 325 (d) transfer order itself (see Briscoe v White, 8 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2004]; but see Kaminsky v Connolly, 73 Misc 2d 789 [App Term, 1st Dept 1972]). Accordingly, the order of the Civil Court is reversed and Mount Vernon’s motion is dismissed.

Any declaratory judgment would appear to exceed the $25,000.00 limit due to the $50,000.00 worth of benefits that it would affect. And, looking at CCA 212-a, no no-fault declaratory judgment would “involving the obligation of an insurer to indemnify or defend a defendant.”

Withdrawn, but back

Written on April 16, 2010 by Dave Gottlieb

You remember, Amercure Acupuncture, P.C. v GEICO Ins. Co., 2010 NY Slip Op 20098 (App. Term, 2nd, 11th, and 13th Jud. Dists., 2010). The Appellate Term published a decision, then took it back.

Apparently they, like many of us, have learned to copy and paste.

Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 2010 NY Slip Op 50650(U) (App. Term, 2nd, 11th, and 13th Jud. Dists., 2010)

We find that plaintiff’s doctor’s “affirmation” submitted in opposition to defendant’s cross motion, if admissible, is sufficient to demonstrate a triable issue of fact as to medical necessity. However, defendant argued, before the Civil Court and on appeal, that plaintiff’s doctor’s “affirmation” is not admissible because it impermissibly bears a stamped facsimile of the doctor’s signature. We recognize that such an allegation, when properly asserted, ordinarily raises an issue of fact that cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). While the motion for summary judgment could simply be denied due to the existence of such an issue of fact, we are of the [*2]opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the signature upon plaintiff’s doctor’s “affirmation,” which will determine whether the “affirmation” was in admissible form (see also Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, whether defendant’s prima facie showing upon its cross motion was rebutted.

Does anyone hear that in the distance? It sounds like a powerful rider, with a bare chest. He must be riding a hairy beast with an adorable accent. Back again to save the day?