You can register HERE.
You can register HERE.
H/T to SHG. If not for him using the phrase in his posts, I would have never known about this remarkable condition.
That was, and will be the highlight of my day. My oldest kid started off my day by coughing in my face, which she thinks is hilarious (she’s still a little under the weather). Knowing that it was going to be a good day, I figured it would be a good idea to take her for a walk with me. After a fierce battle–her flipping out; me waiting for her to stop–off we went for what should have been a pleasant walk to the store. On our way we stopped at the bank, where I had to talk to an employee whose understanding of his job was limited to: money goes in and comes out. After dealing with that for a half hour, we headed off to Staples.
Did you know back to school season started? I didn’t.
We walked in; the kid jumped out of her stroller. I was forced into a game of hide-and-seek. Except it wasn’t really a game of hide-and-seek. It was more like, where-the-hell-did-she-go, put-that-down, stay-away-from-that, I’m-sorry, she-didn’t-mean-it. Wonderful.
Once I reigned her in, we went straight to the pen aisle. And I picked up, and bought, my pens. Two packs worth.
Now, that I’m home, and the little psychopath angel is sleeping, I have some time to write about some interesting stuff I found during the week and over the weekend.
Twitter continues to provide useful information. Today @TheJuryExpert gave a link to a post describing how introverts and shy people can connect with others, despite their nature. Need some grammar help? @thatwhichmatter provides some great nuggets. @mashable has a great link for image generators. And finally, as far as twitter goes, @nikiblack provides a link to an article in the Bits Blog (NY times) that should serve as a reminder that you are being watched.
I’ve been reading The Iliad on my Iphone and I have a question. I posted the question on facebook, where I received some response. I also posted the question on Twitter, where I received no responses (thanks jerks). The question is this: Why is everyone in such a rush to take the armor from a dead soldier? In the middle of great battles, people will stop and try to steal armor. Does anyone know why?
*my computer crashed right about here*
I will be posting about the SCOTUS case as it relates to no-fault soon. Look for it in the next few days. And the header, the thing with the name of the blog and the picture that used to be at the top. I lost it. While I was playing around with it, the computer crashed and I lost the picture. It’s around here somewhere. I’m sure I’ll find it.
Don’t forget about the CLE in September.
Roy Mura, over at CoverageCounsel, tells us that James J. Wrynn is the new superintendent.
The Supreme Court of the United States recently granted cert in Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 129 S.Ct. 2160, 173 L.Ed.2d 1155, 77 USLW 3472, 77 USLW 3605, 77 USLW 3609 (U.S. May 04, 2009) (NO. 08-1008).
More details on the case can be found HERE, HERE, HERE, and HERE.
I posted on theCPLRblog. Any future posts about the case as is relates to be no-fault will be on this blog.
Hat tip to secretstash for this one
VerdictSearch has a case report on Jon H. Dodson, M.D. and Forest Park Medical Clinic, P.A. v. Allstate Insurance Co.
Allstate told patients who were either insured or third-party claimants that Dodson was running a criminal operation; that he wasn’t licensed; he had untrained personnel; he conducted intentional overcharges for services never provided; and that personal injury attorneys in the area were told by Allstate not to send their clients to Dodson because the insurance company was going to put him out of business.
Dodson and his medical practice sued Allstate for defamation and intentional interference with contract and economic expectations. The trial was the third in a series of trials, as the prior two were appealed before the state Supreme Court. According to the plaintiff’s insurance claims expert, the defendant’s practices violated industry standards because Allstate sought to exploit the inaccessibility of the country’s judicial system in small cases, which fell in the 10th percentile and whose costs were too high to process. The defendant offered claims settlements in the lowest 10th percentile so that a huge bulk would carry down in the bottom-line profits for the defendant insurance company.
The defendant denied the allegations. Defense counsel asserted that, due to myriad frauds committed in insurance transactions by physicians and claimants, Allstate had a duty to ferret out such transactions on behalf of its policyholders; therefore, its investigations of the plaintiff were reasonable and necessary.
Urban Radiology, P.C. v American Tr. Ins. Co., 2009 NY Slip Op 51734(U) (App. Term, 2nd, 2009)
It is well settled that in order to vacate a default judgment, the defendant must demonstrate both a reasonable excuse for its delay in appearing and answering the complaint as well as a meritorious defense to the action (see CLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). In the case at bar, defendant’s no-fault supervisor, who was also the claims representative who handled the instant claims, submitted an affidavit in which he stated that defendant had lost the file containing the summons and complaint and had not found out about the default until June 25, 2007. The record also indicates that defendant’s attorney initiated the instant motion to vacate the default judgment promptly in July 2007. On these facts, defendant’s failure to answer the complaint was excusable (see e.g. Perez v Travco Ins. Co., 44 AD3d 738 [2007]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d at 743; Dodge v Commander, 18 AD3d 943, 946 [2005]; Triangle Transp. Inc. v Markel Ins. Co., 18 [*2]AD3d 229 [2005]; Allstate Ins. Co. v Progressive Cas. Ins. Co., 20 Misc 3d 139[A], 2008 NY Slip Op 51567[U] [App Term, 2d & 11th Jud Dists 2008]).
A review of the record indicates that defendant demonstrated a potentially meritorious defense to plaintiff’s $2,322.73 claim for the services it rendered to assignor Patrick Seraphin. The affidavits of defendant’s claims representative and mail room supervisor show that defendant timely denied said claim within the 30-day statutory time period as required by Insurance Department Regulations (11 NYCRR) § 65-3.8 (c) (see also Insurance Law § 5106 [a]), based upon, inter alia, a peer review report concluding that there was no medical necessity for the services rendered to Seraphin. In regard to the claims for the services plaintiff rendered to assignor Guy Louis, defendant argued that it did not have to pay or deny these claims because plaintiff had failed to respond to its verification requests and, thus, the 30-day statutory time period within which it had to respond to the claims had been tolled. However, defendant failed to demonstrate merit to said defense since the affidavits did not show that defendant’s requests for additional verification were timely (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]) and, consequently, the action with respect to said claims was not premature.
In view of the fact that defendant has shown a reasonable excuse for its default and a meritorious defense as to the claim for services rendered to assignor Patrick Seraphin, we find that the Civil Court improvidently exercised its discretion in denying that part of defendant’s motion which sought to vacate the default judgment and compel plaintiff to accept a late answer with respect to plaintiff’s $2,322.73 claim (see New York Univ. Hosp. Rusk Inst. v Illinois Natl. Ins. Co., 31 AD3d 511, 512 [2006]).
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Great Wall Acupuncture, P.C. v Auto One Ins. Co., 2009 NY Slip Op 51733(U) (App. Term, 2nd, 2009)
However, plaintiff correctly argues that the Civil Court erred when it ordered plaintiff to respond to specified items set forth in defendant’s supplemental demand for discovery and inspection. By cross-moving to compel responses to its supplemental demand for discovery and inspection on the same day as it served said supplemental demand, defendant failed to give plaintiff an opportunity to respond to the supplemental demand or to object thereto. Indeed, defendant cross-moved before plaintiff even received the supplemental demand. As a result, defendant’s cross motion should have been denied as premature (see Sagiv v Gamache, 26 AD3d 368 [2006]).
W & Z Acupuncture, P.C. v Amex Assur. Co., 2009 NY Slip Op 51732(U) (App. Term, 2nd, 2009)
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’s owner had failed to appear at counsel’s law office for duly scheduled EUOs (see Stephen Fogel [*2]Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The appearance of the eligible injured person’s assignee at an EUO 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 722). Accordingly, the court should have denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Pesce, P.J., and Golia, J., concur.
Rios, J., dissents in a separate memorandum.
Rios, J., dissents and votes to affirm the judgment in the following memorandum.
In support of its cross motion for summary judgment and in opposition to plaintiff’s motion for summary judgment, defendant alleged that plaintiff’s owner failed to appear at scheduled examinations under oath (EUOs). Although a partner of the law firm at which the EUOs were scheduled to be held submitted an affirmation asserting plaintiff’s owner’s nonappearance, nowhere in the affirmation did the affirmant state that he had personal knowledge of such nonappearance (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) or even that he was to be personally involved in conducting the EUOs. Unlike the majority, I do not believe that such personal knowledge can be inferred solely from the fact that the affirmant was a partner of the law firm. Accordingly, I would hold that defendant’s cross motion for summary judgment was properly denied and plaintiff’s motion for summary judgment was properly granted, and would affirm the judgment.
Astoria Advanced Med., P.C. v Allstate Ins. Co., 2009 NY Slip Op 51729(U) (App. Term, 2nd, 2009)
WJJ Acupuncture, P.C. v Utica Mut. Ins. Co., 2009 NY Slip Op 51731(U) (App. Term, 2nd, 2009)
Plaintiff commenced the instant action to recover first-party no-fault benefits assigned to it by Natasha Wright, Junior Ford and Steven Stryr. By order dated April 19, 2007, the Civil Court granted plaintiff’s motion for summary judgment, and this appeal ensued. The appeal is deemed to be from the judgment that was subsequently entered pursuant to the April 19, 2007 order (see CPLR 5501 [c]).
Contrary to plaintiff’s contention, the subject order was not entered upon defendant’s default inasmuch as the CPLR 2219 (a) recitation states that the court considered defendant’s opposing papers (see CPLR 2219 [a]; Mitchell v Sebrew, 17 Misc 3d 137[A], 2007 NY Slip Op 52301[U] [App Term, 2d & 11th Jud Dists 2007]; A.B. Med. Servs PLLC v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50115[U] [App Term, 2d & 11th Jud Dists 2005]).
Defendant contends on appeal, as it did before the Civil Court, that plaintiff’s motion for [*2]summary judgment was made in violation of a previously ordered stay issued by the Supreme Court, Nassau County (Brennan, J.). Upon a review of the order issued by Justice Brennan, which was appended to defendant’s opposition papers, we find that the order barred plaintiff from moving for summary judgment upon plaintiff’s claims pertaining to assignors Natasha Wright and Junior Ford (see A.T. Med., P.C. v State Farm Ins. Co., 19 Misc 3d 138[A], 2008 NY Slip Op 50875[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, plaintiff’s motion for summary judgment is denied without prejudice with respect to these claims.
However, inasmuch as the stay is inapplicable to claims pertaining to assignor Steven Stryr, the stay did not bar the branch of plaintiff’s motion which sought summary judgment upon the $428.56 claim to recover assigned first-party no-fault benefits for services rendered to Stryr. As the sole argument raised on appeal by defendant concerns the stay issued by Justice Brennan, defendant failed to establish that plaintiff was not entitled to summary judgment upon the $428.56 claim pertaining to Stryr.
Accordingly, the judgment is reversed, so much of the order entered April 19, 2007 as granted plaintiff’s motion for summary judgment upon its claims pertaining to assignors Natasha Wright and Junior Ford is vacated, said branches of plaintiff’s motion for summary judgment are denied without prejudice, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees due on plaintiff’s claim for $428.56, pertaining to assignor Steven Stryr, pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
It isn’t for me. This is only tangentially related to no-fault, but it’s worthwhile.
Most people, like me, won’t walk up one flight upstairs if an elevator is available. Some take it further (again, like me) and won’t get up to change the channel, no matter how horrendous the show, if the remote can’t be found. There are others; however, who will not only walk up a flight of stairs, but will run a marathon…for fun. Sometimes you find the rare person who will run that marathon for animals .
All this brings me to a soon-to-be admitted attorney and employee of Bruno Gerbino & Soriano, LLP, Ferron A. Lien. It came to my attention that she wants to run the New York City Marathon for the North Shore Animal League America, but she needs to raise money. She needs to raise $1,250.00 by Sept 4th.
Why not reward someone trying to do something nice; especially if it’s for animals. Do it for the animals.
For more information, and to donate, click HERE.
The dog in the picture…he’s mine. Dumb as rocks.