New York No-Fault Law

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So, if anyone is wondering what the 9 circles of of hell are:

1. Limbo
2. Lust
3. Gluttony
4. Avarice
5. Wrath
6. Heresy
7. Violence
8. Fraud
9. Betrayal

Bath Med. Supply, Inc. v Allstate Indem. Co., 2010 NY Slip Op 20059 (App. Term, 2nd, 2010)

In this action by a medical equipment provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved to dismiss the complaint pursuant to CPLR 3126 for plaintiff’s failure to comply with defendant’s discovery demands, including plaintiff’s failure to appear for an examination before trial, or, in the alternative, to compel plaintiff to appear for an examination before trial pursuant to CPLR 3124. In addition, defendant argued that plaintiff had violated a condition precedent to coverage by failing to appear for examinations under oath (EUOs) and that plaintiff’s motion for summary judgment should be denied because plaintiff had failed to make a prima facie case. The District Court denied plaintiff’s motion as premature, pursuant to CPLR 3212 (f), and granted defendant’s CPLR 3126 cross motion to dismiss unless, within 30 days of the order, plaintiff and its assignor submitted to examinations before trial. Plaintiff appeals and we reverse.

Contrary to defendant’s contention, plaintiff established its prima facie entitlement to summary judgment by proving submission of the 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]). We note that the affidavit submitted by plaintiff established that the aforementioned forms, which were annexed to the affidavit, constituted evidence in admissible form (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & [*2]10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

The court denied plaintiff’s motion for summary judgment pursuant to CPLR 3212 (f) on the ground that defendant was entitled to discovery pertaining to its contention that plaintiff had billed insurance companies for medical supplies which were never provided. However, defendant failed to make any showing that its denial of claim forms were timely mailed and that it is not precluded from raising fraudulent billing as a defense (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Consequently, the court’s determination that discovery was necessary to obtain facts relevant to this precluded defense was improper, and, thus, plaintiff’s motion for summary judgment should not have been denied on that basis.

A defense that plaintiff may be ineligible to recover no-fault benefits because it failed to adhere to applicable statutes (cf. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) is not precluded, notwithstanding defendant’s failure to demonstrate that its denial of claim forms were timely sent. However, defendant has offered no factual basis for its contention that plaintiff was not properly incorporated as a provider of durable medical equipment or failed to obtain any license that may have been required at the time it delivered medical equipment to its assignor. Further, in light of the availability of public records documenting plaintiff’s licensing status, defendant “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact (see CPLR 3212 [f])” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814, 815 [2009] [summary judgment should be deferred pending discovery only when the opponent "offer[s] an evidentiary basis to suggest that discovery might lead to relevant evidence and that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff”]).

We note that, insofar as the order conditioned the grant of defendant’s cross motion on the nonappearance of plaintiff’s assignor for an examination before trial, the order was improper. As plaintiff’s assignor is neither a party to this action nor under plaintiff’s control (Leon v Martinez, 84 NY2d 83, 88 [1994]; Cardtronics, LP v St. Nicholas Beverage Discount Ctr., Inc., 8 AD3d 419, 420 [2004]; 6A NY Jur 2d, Assignments §§ 59, 85), the sanctions provided by CPLR 3126 (3) for nondisclosure cannot be imposed on plaintiff for failing to produce its assignor for an examination before trial (MIA Acupuncture, P.C. v Mercury Ins. Co., ___ Misc 3d ___, 2009 NY Slip Op 29509 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Defendant also argues that it raised a triable issue of fact in opposition to plaintiff’s motion for summary judgment, in that it demonstrated that plaintiff failed to appear for an EUO. As noted above, defendant failed to show that it timely denied plaintiff’s claims. Accordingly, defendant has not established that this defense is not precluded (see Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Both of the issues (non party and 3212(f)) were discussed in the most recent edition of the wrap-up.  I posted the Corwin decision back in October, though I think JT got to it first, but I couldn’t find it on his blog.  In the wrap-up we discussed recent decisions that appeared to indicate per se 3212(f) relief could be granted where a defendant claimed a Mallela defense.  After reading this decision, I don’t think such a rule exists.

Advanced Tempromandibular Disorder & Dental Surgery v Progressive Northeastern Ins. Co., 2010 NY Slip Op 20047 (Dist Ct Suffolk County, Third Dist, 2010)

The doctrine of stare decisis binds this Court to follow the rulings of its Appellate Term (9th & 10th Dists.); the Second Department Appellate Division and the New York Court of Appeals. The plaintiff advances the argument that stare decisis requires it to adopt the First Department Appellate Division/Term decisions in the absence of a Second Department or Court of Appeals decision. See, Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663 (NYAD 2nd Dept. 1984). While generally true, the novel complicating factor in this case is that an Appellate Term Court in a different district in this Court’s Appellate Division has contemporaneously taken a contrary position. In such a circumstance, when presented with conflicting Appellate decisions from outside its jurisdictional chain, this Court determines that stare decisis does not bind it and that it is free to make its own decision.

The Court notes that a sister Suffolk County District Court has already addressed the issue and rendered a treatise decision citing to a plethora of case law and to Prof. David Siegal’s New York Practice Commentary and Prince, Richardson and Wigmore on Evidence, which allowed the use of Notices to Admit as prima facie evidence. Seaside Medical, P.C. v. General Assur. Co.,New York Law Journal, 3-26-2009, NYLJ 4 (col. 1); See generally, Taylor v. Blair, 116 AD2d 204 (NYAD 1st Dept.1986). The distinction between informal judicial 16 Misc. 3rd 758 (Suff. Co. Dist. Ct. 2007). This holding appears correct, especially in light of the simplified expedited payment process that the legislature has established for no-fault claims. “Notices to Admit” are more than simply a discovery device, such as an interogatory. The fundamental purpose of a Notice to Admit is to expedite the trial by eliminating the need to call a witness to prove an undisputed fact; matter which is easily provable or the genuineness of a document. See, [*3]admissions which are adduced in sworn deposition transcripts and interrogatory answers, and those established via formal judicial admissions established in a Notice to Admit is that the informal admissions must be proven at trial via witness testimony. The absence of an affirmative denial waives the need to prove the requested admission as effectively as if admitted in the answer.

Accordingly, the Court finds that the plaintiff has established an unrebutted prima facie cause of action pursuant to New York Insurance Law Sec. 5106 (a) and enters judgment for it in the sum of $1,184.66 plus statutory interest from 30 days after its claim date, statutory attorneys fees and costs. Settle judgment upon twenty (20) days notice.

Matter of Progressive Northeastern Ins. Co. v Akinyooye, 2010 NY Slip Op 01495 (App. Div, 2nd, 2010)

Contrary to the petitioner’s contention, the Supreme Court properly found, upon documentary submissions in lieu of a framed-issue hearing, that Allstate Insurance Company demonstrated that its insured was provided with a notice of intent to cancel and a cancellation notice fully compliant with Banking Law § 576, more than one year prior to the subject accident (see Crump v Unigard Ins. Co., 100 NY2d 12, 16; Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Matter of Autoone Ins. Co. v Zanders, 50 AD3d 682; Shia v McFarlane, 46 AD3d 320, 321; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680; Allstate Ins. Co. v Motor Veh. Acc. Indem. Co., 115 AD2d 264, 265). Accordingly, the Supreme Court properly, in effect, directed the parties to proceed to arbitration.