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 hominem^A 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.