Category Archives: Declaratory Judgment

Interweb is Back

Written on November 25, 2009 by David M. Gottlieb
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Lots of new decisions.

Great Wall Acupuncture, P.C. v Geico Ins. Co., 2009 NY Slip Op 52374(U) (App. Term, 2nd, 2009)

In this action by a provider to recover assigned first-party no-fault benefits, the matter went to trial on plaintiff’s six claims with respect to, inter alia, the issue of the rate of reimbursement for acupuncture treatments provided by licensed acupuncturists. In its decision after trial, the Civil Court determined that, in accordance with Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture sessions, and that the appropriate rate was $29.30 per session. Defendant had reimbursed plaintiff for two of the claims at the rate of $29.30. The Civil Court determined that plaintiff was also entitled to reimbursement on the remaining claims, two of which defendant had denied on the ground that plaintiff had failed to timely submit the claims, and two of which defendant had denied on the basis of lack of medical necessity. Accordingly, the Civil Court granted judgment to plaintiff in the sum of $322.30. However, judgment was entered on May 9, 2008 in the principal sum of $1,718.40. Plaintiff appeals from the judgment.

Since the judgment awarded plaintiff the full balance which it had requested, $1,718.40, plaintiff is not aggrieved thereby, and the appeal must be dismissed (see CPLR 5511; Lowery v Lamaute, 40 AD3d 822 [2007]).


Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 2009 NY Slip Op 52379(U) (App. Term, 2nd, 2009)

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for leave to reargue its prior motion for summary judgment dismissing the complaint. The prior motion, which was predicated on the ground that neither defendant’s insured nor defendant’s insured’s vehicle was involved in the subject accident, had been denied with leave to renew upon proper papers, on the ground that a certificate of conformity was lacking. In support of its reargument motion, defendant submitted the affidavit of its insured, in which the affiant averred that, although she drove the subject vehicle on the day of the alleged accident, at no time on that day did she “strike a pedestrian while driving.” She further stated that even though her vehicle “was stopped at the alleged accident scene along with several other vehicles and pedestrians,” “[a]t no time did [her] vehicle come into contact with Catherine Almanzar on that day.” In opposition to the motion, plaintiff submitted the affirmation of its attorney, in which the attorney argued, inter alia, that defendant’s affidavit was conclusory and did not establish defendant’s prima facie entitlement to judgment as a matter of law and that the “motion should not be heard prior to defense counsel’s adherence to the CPLR disclosure rules.” The Civil Court granted leave to reargue and, upon reargument, awarded defendant summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

Defendant established its prima facie entitlement to judgment by showing that its insured’s vehicle was not involved in an accident in which plaintiff’s assignor was allegedly injured. Consequently, in order to defeat defendant’s motion for summary judgment dismissing the complaint, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U] [App Term, 2d, [*2]11th & 13th Jud Dists 2009]). Plaintiff, however, failed to rebut the assertions contained in defendant’s insured’s affidavit. Accordingly, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint (see Mid Atl. Med., P.C., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U]).

A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 2009 NY Slip Op 52383(U) (App. Term, 2nd, 2009)

Defendant’s cross motion for summary judgment and opposition to plaintiff’s motion for summary judgment were premised upon defendant’s “founded belief” that the alleged injuries of plaintiff’s assignor did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), but were sustained, if at all, in a staged accident. Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment [*2]upon their respective motion and cross motion seeking such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980], and the amended order is modified accordingly.

New York Cent. Mut. Ins. v McGee, 2009 NY Slip Op 52385(U) (Sup. Ct. Kings County, 2009)

Here, there may be a question as to whether, even as a pleading, the Complaint sufficiently alleges “fraudulent incorporation” (see Autoone Ins. Co. v Manhattan Hgts. Med., [*7]P.C., 2009 NY Slip Op 51662 [U], at * 4; CPLR 3013; CPLR 3016 [b]; CPLR 3211 [a] [7]); and, even if it does, there is no evidentiary support for injunctive relief.

The Court sua sponte orders severance of the causes of action alleged in the Complaint; within sixty (60) days from the date of this Decision and Order, Plaintiff shall serve an amended complaint that complies with this Decision and Order, particularly as to number of defendants and insureds.


Dynamic Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 29478 (Dist. Ct. Nassau, 2009)

The only other issue worth addressing is the propriety of using CPLR 3211 (instead of CPLR 3212) as the vehicle for dismissal. Subject to further guidance from our appellate courts, I believe that CPLR 3211(a)(7), read together with CPLR 3211(a)(1), allows a Court to consider a combination of documents and affidavits when determining whether the defendant is entitled to judgment upon a pre-answer motion to dismiss.  Biondi v. Beekman Hill House Apartment Corp., 257 AD2d 76 (1st Dept 1999),

affd. 94 NY2d 659 (2000), is instructive on this point. In that case, the defendant [*2]moved to dismiss a civil action based on “extrinsic evidence” consisting of “affirmations and exhibits.” 257 AD2d at 80-1. The IAS Justice denied the motion, finding from the “four corners” of the complaint that it alleged a cognizable cause of action. Id. at 80. The Appellate Division reversed. Id. “Where extensive evidence is used” to support a motion to dismiss, the Court explained, the issue for determination is “whether the proponent of the pleading has a cause of action, not whether he has stated one.” Id. at 81, quoting Guggenheim v. Ginzberg, 43 NY2d 268, 275 (1977 ). Accordingly, in cases where the complaint’s validity has “been negated beyond substantial question by the affidavit and evidentiary matter submitted” and it is clear that plaintiff “does not have a [viable] cause of action,” dismissal under CPLR 3211 is warranted. 257 AD2d at 81.

Admittedly, other caselaw pronouncements construing CPLR 3211(a) (7) paint a more confusing and contradictory picture. SeeRovello v. Orofino Realty Co., 40 NY2d 633 (1976), read broadly, appears to limit the Court’s authority to grant dismissal, upon affidavits, without converting the motion from a motion to dismiss into a motion for summary judgment. However, the Court of Appeals’ more recent decisions recognize that dismissal upon a 3211 motion may be granted where affidavits “established conclusively” that the plaintiff has no valid claim or cause of action to pursue. See Lawrence v. Miller, 11 NY3d 588, 595 (2008); accord Godfrey v. Spano,— NY3d —, 2009 NY Slip Op 08474 at *7 (decision dated November 19, 2009). Siegel, Practice Commentaries to McKinney’s CPLR, at C3211:25. The majority opinion in

Accordingly, under the logic of the more recent cases, where a “conclusive” case for dismissal is made out, the outcome of a given motion for judgment should not depend upon the largely technical distinction between a pre-answer (§3211) and post-answer (§3212) motion. Either way, if the defendant can make a conclusive showing of entitlement to judgment as a matter of law, it ought to be able to obtain an order dismissing the complaint.

Using CPLR 3211(a)(7) to achieve such a result is hardly unprecedented. Indeed, defendant cites numerous decisions from lower court judges throughout the New York metropolitan area where similar relief was sought, and successfully obtained. Moreover, CPLR §104 provides that the Civil Practice Law and Rules of this state should be construed to secure “the just, speedy and inexpensive determination of every civil judicial proceeding,” and toward that end, I see no overriding public policy reason why the procedures chosen by defendant cannot be used to obtain a speedy determination of an otherwise compelling, proveable defense, of an EUO default.

In sum, with all due respect for judicial determinations that may have read CPLR 3211 more narrowly, e.g. Dynamic Medical Imaging, PC v. State Farm Ins. Co., index no. 10100/09, decision dated October 1, 2009 (Dist Ct Nassau Co., Hirsh, J.), I have concluded, after careful consideration, that CPLR 3211 is an appropriate vehicle for obtaining a prompt judicial ruling respecting a defense of an EUO default. For all these reasons, the subject complaint is dismissed.


See that bold part?  For a lot of reasons, I disagree.  I’ll get into that later.

App Term 2nd, Declaratory Judgment, Fee Schedule, Policy Issues, no fault law
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Putting collateral estoppel to use, but without success

Written on October 31, 2009 by David M. Gottlieb
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State Farm Ins. Co. v Frias, 2009 NY Slip Op 07825 (App. Div., 2nd, 2009)

Of the 10 defendants named in this action, only 3, Luccme, Urena, and Pedro Fernandez, answered the complaint, and the Supreme Court granted State Farm’s motion for leave to enter a default judgment against the other defendants. State Farm was directed to submit a proposed judgment on notice. Luccme and Urena were served with the proposed judgment, and did not object to its terms or submit a proposed counter-judgment of their own. On October 25, 2006, the Supreme Court entered a judgment against the defaulting defendants. The judgment declared that State Farm was not required to provide insurance coverage to the defaulting defendants because the incident of January 24, 2002, resulted from an intentional act; that, by reason of no coverage and the failure of State Farm’s insured to cooperate, State Farm was not obligated to defend or indemnify Frias or Abreu in any current or future proceeding, including the underlying action; and that State Farm was not required to pay any damages, awards, or benefits to any of the other defaulting defendants in any current or future proceedings, including the underlying action.

State Farm subsequently moved for summary judgment against the three nondefaulting defendants, including Luccme and Urena, based on those parts of the default judgment which declared that the January 24, 2002, collision resulted from an intentional act, and that State Farm was not obligated to defend or indemnify its insureds or to provide any coverage. State Farm argued that, because the three nondefaulting defendants had not proposed a counter-judgment, had not opposed State Farm’s proposed judgment, had not moved for leave to renew or reargue, had not moved to vacate the judgment, and had not appealed from the judgment, they were estopped from challenging the declarations contained in it. Luccme and Urena opposed State Farm’s motion and, in an order entered April 10, 2008, the Supreme Court granted the motion based on the failure of the nondefaulting defendants to oppose the proposed judgment. Luccme and Urena appeal from the resulting judgment. We reverse.

Inasmuch as State Farm initially moved for leave to enter a default judgment against the defaulting defendants only, the resulting judgment binds only those defendants, and may not be given preclusive effect to deprive Luccme and Urena, who appeared in the action, of their right to litigate the issues pertaining to coverage (see American Motorists Ins. Co. v North Country Motors, 57 AD2d 158, 160). Accordingly, we reverse the order insofar as appealed from.

Defendant obtained a default on some of the parties, then tried to use that default as collateral estoppel against the appearing parties.   Sneaky Sneaky.

Yes, this is what I do with my Saturday nights.  I read cases and blog.  I actually made coffee for this, because I was tired but wanted to blog.

Initially I said that Malcom Gladwell’s new book, What The Dog Saw, wasn’t that good; that it was far worse than his other books.  I was wrong.  It isn’t far worse.  More like slightly less than mostly worse.  It isn’t even really a book; it’s a collection of articles he’s written.  One of my favorite articles was, The Art of Failure: Why Some People Choke and Others Panic.  I hope that isn’t telling.  I probably should have found an article on success stories.  Anyway, his distinction between choking and panicking was interesting.  After reading the article, I noticed things that I would have otherwise missed.

There are about 20 articles in the book.  I liked about 8 of them.  Wait for this to come out in paperback.  Next up on the reading list is Superfreakonomics.  If you haven’t read Freakonomics, you should.  I’m almost done with that book on religious freedom.  And I’m still reading everything I said I was reading before.

While you’re here…

Here are some things I’ve found around the interweb that you might find interesting.  Money and Cognitive Bias, from Crime & Federalism.  Monster Energy Drink’s Monstery Conduct, from New York Personal Injury Law Blog.  7 Must Read Productivity Steps to Finally Getting Things Done, from Dumb Little Man.  Big ideas…, from Seth Godin’s Blog.  The Best Decline Letter of All-Time, from The Blog of Author Tim Ferriss.

Finally, I’m still working on the look and feel of this blog.  Wordpress is more difficult to figure out that blogger and I don’t have as much time to work on it as I’d like.  Eventually I may have to break down and hire someone to fix it up.  So yeah, I’m working on it.




Tags: , Appellate Division, Collateral Estopptel, Declaratory Judgment, Default Judgments
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Catching Up

Written on October 24, 2009 by David M. Gottlieb
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I’ve been under the weather for the past week.  According to my wife, I wasn’t sick enough.  According to some people at the office, I had a bad case of the whine flu.  According to me, I felt like I was going to vomit and pass out.

So I didn’t post.  I barely looked at the cases that were coming out.  It’s time to catch up.

No-Fault Defender posted on two important issues.  First, the Appellate Division granted leave to appeal the Appellate Term’s decision in Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 (App. Term, 2nd 2009).  The decision dates are different, but it’s the same case.  I took a trip over to the Appellate Division to confirm.  The Pine Hollow decision was stapled to the order granting leave1.  Some might find that interesting.  You can read No-Fault Defender’s post HERE.  He believes, and I agree, that this may be the end of Dan Med–a decision that never made sense.  The other post asked the question, Must a carrier demonstrate that a deponent willfully failed to attend EUO’s in order to substantiate this defense?  It begins with the recent Progressive Northeastern Ins. Co. v Arguelles Med. P.C., decision where the Supreme Court found that defendant failed to prove that the EUO was reasonably required, among other things.  He concludes that “In order to oppose an EUO no-show defense, the burden is on the Plaintiff to demonstrate a lack of reasonableness.”  While he poo poos the willful and avowed standard, I believe that it remains appropriate, even for condition precedent issues.  And there is always the Insurance Department opinion letter.

My favorite part of his post is where he directs his readers to my post–the one that only has the case cite and link–for my insight.  Thanks.  This is not the place to go for insight; however, if what you are looking for is stick figure drawings of people sticking their ass in other people’s faces on the subway, this is your place.

In other news2:

Med-Tech Prods., Inc. v Geico Ins. Co., 2009 NY Slip Op 52111(U) (App. Term, 2nd 2009)

Contrary to defendant’s contention, the affidavits of plaintiff’s president, who was also plaintiff’s custodian of records, were sufficient to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As defendant concedes, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms acknowledging receipt of the claim forms (see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

In opposition to plaintiff’s motion, defendant established that it had timely denied the claims in question based upon affirmed peer review reports setting forth a factual basis and medical rationale for the doctor’s opinion that the supplies provided to plaintiff’s assignors were [*2]not medically necessary (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; Quality Health Prods., P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51757[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Velen Med. Supply, Inc. v GEICO Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Plaintiff’s contention that the peer review reports did not constitute evidence in admissible form was waived since said argument is raised for the first time on appeal (see Dowling v Mosey, 32 AD3d 1190 [2006]; Velen Med. Supply, Inc., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U]; Alur Med. Supply, Inc. v Geico Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51867[U] [App Term, 2d & 11th Jud Dists 2008]).

Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co., 2009 NY Slip Op 52122(U) (App. Term, 2nd 2009)

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. We disagree because the affidavit was sufficient to comply with CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]).

Fatiha Ibrahim, D.C. v MVAIC, 2009 NY Slip Op 52125(U) (App. Term, 2nd, 2009)

The Civil Court denied MVAIC’s motion, holding that “MVAIC did not conform to the verification request protocol mandated by the Insurance Regulations of New York.”

Where, as here, plaintiff and his assignor are aware of the identity of the owner of the vehicle which plaintiff’s assignor was driving at the time of the accident, plaintiff, as assignee, is 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]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). However, under the facts of this case, MVAIC’s motion for summary judgment was properly denied since the motion papers contained what appeared to be only the last page of an affidavit executed by MVAIC’s claims examiner, which did not establish, by one with personal knowledge of the facts, plaintiff’s failure to exhaust his remedies against the vehicle’s owner (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant did not demonstrate a prima facie entitlement to summary judgment and, thus, the order is affirmed.

Nationwide Mut. Fire Ins. Co. v Aquiles, 2009 NY Slip Op 32432(U) (Sup Ct, Nassau County, 2009)

In news unrelated to no-fault, everyone should take a moment to check out John M. Hochfelder’s blog, New York Injury Cases Blog.  His posts have pictures.  PICTURES!  And the man can write.  If there are a thousand personal injury blogs, only a handful are worth reading.  His is one of them.

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1.  I also read the briefs.  One of them was full of ad hominemA arguments and hyperbole.

2. Some believe that the Appellate Term invented the Dan Med rule to cut down on no-fault litigation, or at the very least, make the cases speed along in the Courts.  If so, the decision has had a contrary effect.  Not only has it clogged the Courts, it caused countless appeals.  Good Stuff.

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A.  That’s right, a footnote to the footnote.  I just did that.  If you are interested, Logic for Lawyers, comes highly recommended.  It isn’t cheap, which is why I haven’t read it yet, but based on the recommendation (and the author), I think it’s worth picking up.

Tags: , , , , Coverage, Dan Med, Declaratory Judgment, EUO, Fraud, Geico, Legal writing, no fault law, progressive
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New From the Appellate Division

Written on September 17, 2009 by David M. Gottlieb
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Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 2009 NY Slip Op 06516 (App. Div., 2nd 2009)

For some background on the case, head over to No Fault Law – A Defense Attorney’s Perspective.  The Appellate Division’s decision won’t give you any insight, so you might as well click the link.

Tags: , , Coverage, Declaratory Judgment, Default Judgments, Policy Issues
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SOME NEW DECISIONS

Written on August 28, 2009 by David M. Gottlieb
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Matter of Progressive Northeastern Ins. Co. v Seaport Orthopedic Assn., 2009 NY Slip Op 31915(U) (Sup Ct, NY County, 2009)

The mystery author over at No Fault Law – A Defense Attorney’s Perspective discusses this decision, which is in PDF.

The Master Arbitrator found that Progressive didn’t properly serve its notice of appeal properly because it wasn’t sent by certified mail as 11 NYCRR 65-4.10(d) requires, and denied the appeal for that reason. As it turns out, it was sent by certified mail, but Progressive decided not to tell anyone about it. After Master Arbitrator rejected the appeal, Progressive made a formal demand for a “take back,” a close relative to the “backsie” doctrine. The Master arbitrator responded with “no backsies” a rarely used legal doctrine, not unlike the previously mentioned “backsie” doctrine, finding that the notice was still improper.

The Supreme Court affirmed the Master Arbitrator because 11 NYCCR 65-4.10(d)(3) requires that the notice set forth the manner of service and “the Master Arbitrator was within his power to hold that service was improper, and refuse to reach the merits of the decision of the lower arbitrator.”

In arbitrations, like everywhere else, timing is everything.

Progressive lost the underlying arbitration because it made a standing argument, but did not request verification as to that issue or deny the claims on that issue. Curiously, the Arbitrator cited to Fair Price, rather than Hospital for Joint Diseases. Although, after reading the decision again, I guess it makes sense from the arbitrator’s perspective.

Okslen Acupuncture P.C. v Dinallo, 2009 NY Slip Op 31924(U) (Sup Ct, NY County, 2009)

Appellate Procedure, Arbitration, Declaratory Judgment
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