Progressive Northeastern Insurance Company v Manhattan Medical Imaging, P.C., 2009 NY Slip Op 31200(U) (Sup Ct, NY County, 2009)
Progressive Northeastern Insurance Company v Manhattan Medical Imaging, P.C., 2009 NY Slip Op 31200(U) (Sup Ct, NY County, 2009)
J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 51089(U) (App. Term, 2nd, 2009)
Defendant’s contention that plaintiff should be compelled to accept its answer because plaintiff did not reject the answer within two days of its receipt, as mandated by CPLR 2101 (f), is without merit. Although a plaintiff’s retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness, precluding entry of a default judgment (see e.g. AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 138[A], 2007 NY Slip Op 50263[U] [App Term, 2d & 11th Jud Dists 2007]), a review of the record in the instant case demonstrates that plaintiff made its application for leave to enter a default judgment long before it was in receipt of the answer. Once plaintiff made said application, it thereby objected to defendant’s failure to serve a timely answer, brought that objection to the attention of defendant and the court, and therefore cannot be deemed to have waived any objection to untimeliness (see [*2]Katz v Perl, 22 AD3d 806 [2005]).
We note that a default judgment had already been entered against defendant when it moved to compel the acceptance of its answer or, in the alternative, to extend its time to serve the answer pursuant to CPLR 3012 (d). Accordingly, defendant should have instead moved to vacate the default judgment, pursuant to CPLR 5015 (a). In either situation, however, a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353 [2005]) and, in the case at bar, defendant failed to do so.
While a court may, in the exercise of its discretion, accept a claim of law office failure as a reasonable excuse (see CPLR 2005), defense counsel was required to “submit supporting facts in evidentiary form sufficient to justify the default” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]), and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). The mere statement in defense counsel’s affirmation in support of the motion that his office failed to timely process the summons and complaint “due to clerical inadvertence,” and that law office failure was excusable, did not establish a reasonable excuse for the default (see Ave T MPC Corp. v Chubb Indem. Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51681[U] [App Term, 2d & 11th Jud Dists 2008]).
Because we find that defendant did not establish a reasonable excuse for the default, it is unnecessary for us to address whether defendant demonstrated a meritorious defense.
Ranbow Supply of N.Y., Inc. v NY Cent. Mut. Fire Ins. Co., 2009 NY Slip Op 51083(U) (App. Term., 2nd, 2009)
A review of the record indicates that the affidavit of defendant’s claims representative failed to demonstrate defendant’s prima facie entitlement to summary judgment dismissing the complaint due to a lack of medical necessity. Defendant’s supporting affidavit stated that defendant did not receive the claims at issue prior to the commencement of the action while, at the same time, stating that it received the claims on specified dates prior to the commencement of the action and thereafter timely denied same. In view of the foregoing inconsistency, defendant’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 2009 NY Slip Op 51073(U) (App. Term, 2nd, 2009)
Defendant’s timely motion to vacate the notice of trial (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contains the erroneous statement that discovery was completed or waived (see Savino v Lewittes, 160 AD2d 176 [1990]; First Aid Occupational [*2]Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept 2006]). As it is undisputed that plaintiff never appeared for a deposition in this action despite being served with a notice to take deposition upon oral examination, or complied with the other discovery demands, the notice of trial and certificate of readiness should be vacated (see Great Wall Acupuncture, P.C., 21 Misc 3d at 47).
We further note that the doctrine of laches does not warrant denial of defendant’s motion (see Kornblatt v Jaguar Cars, 172 AD2d 590 [1991]).
The last sentence seemed a little peculiar, so I went over to Westlaw to check out the case the Court cites–Kornblatt. From what I can tell, of all the times the case has been cited, it has not been cited for the proposition the App. Term cites. Instead, it is cited insofar as it relates to the discoverability of tax returns. See, Kay v. Kay, 637 N.Y.S.2d 446 (App. Div., 2nd, 1996); Altidor v. State-Wide Ins. Co., 791 N.Y.S.2d 867, 867 (N.Y.Sup., 2004); Planet Motor Car, Inc. v. Williams, 749 N.Y.S.2d 168 (App. Div., 2nd, 2002); Matter of Estate of Hall, 611 N.Y.S.2d 697, (App. Div., 3rd 1994). There are, however, cases that do address the issue.
One case is Rivera v. City of New York, 791 N.Y.S.2d 306 (NY Sup., 2004). As is Ford v. J.R.D. Management Corp., 656 N.Y.S.2d 946 (App. Div., 2nd, 1997). There are some other cases, but I don’t feel like writing anymore cites. And sure, these two cases might not be on all fours, but at least they are cited for the laches issue.
To be clear, I don’t know the underlying facts in this case, and, I don’t really care. What is important to me is what I see as the Appellate Term stripping away Judges’ discretion, where the Appellate Divisions have has not seen fit to do so.
Update:
After writing this I went over to No Fault Law – a defense attorney’s perspective, and saw a post on this case. That blog cited a recent 1st dept case, coming to a contrary conclusion–Accurate Medical, P.C. v. Travelers Ins. Co. 13 Misc.3d 133(A)(App. Term 1st Dept. 2006). The author discuss this case (Queens Chiro). Head over there and see what he or she has to say.
Update x2:
I’ll add links to everything later, at my leisure.
Triboro Quality Med. Supply, Inc. v Travelers Prop. & Cas. Ins. Co., 2009 NY Slip Op 51082(U) (App. Term, 2nd, 2009)
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment, finding that the affidavit plaintiff submitted in support of the motion was insufficient to lay a foundation for the admission, as business records, of the documents annexed to its moving papers. The court granted defendant’s cross motion for summary judgment dismissing the complaint, holding that defendant established the lack of medical necessity for the supplies provided, and noting that “[p]laintiff did not file any opposition to rebut defendant’s evidence.” As limited by its brief, plaintiff appeals from so much of the order as denied its motion for summary judgment, arguing that its motion papers demonstrated a prima facie entitlement to summary judgment.
Inasmuch as plaintiff does not offer any argument as to why this court should reverse the portion of the order which granted defendant’s cross motion for summary judgment, we need not reach the only issue raised by plaintiff, i.e., whether plaintiff established its prima facie entitlement to summary judgment, since the ultimate outcome of the case would, in any event, [*2]not be altered.
Peer review doctors should have a working knowledge of the articles that they cite. Often then don’t. How do you convey this to the trier of fact? Impeach the sucker with the articles. You’re probably wondering how. Or you’re thinking that I’m stupid for telling you what you already know. As to those that are wondering how, there is a great article in the New York Law Journal, titled, Using Literature to Impeach Expert Witnesses, by Anthony M. Sola and Ellen B. Fishman, partners at Martin Clearwater & Bell. As to the ones that think I’m stupid–nobody loves you. Not even your dog.
Getting back to the article, here are some excerpts:
As anyone who has tried cases in New York courts can verify, so-called expert witnesses who are experienced at testifying not infrequently present opinion testimony that is flawed. All too often, such witnesses cynically refuse to recognize anything as authoritative, as they know the jury in New York State courts will then never learn that there is literature that contradicts their opinions and exposes their testimony as scientifically untenable.For many years, the federal courts have allowed cross-examination of expert witnesses by “statements contained in published treatises, periodicals . . . on a subject of . . . medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.”3 In other words, in the federal courts, the relevant literature used to cross-examine an expert needs to be established as a reliable authority, but this can be done by any expert on any side, or by judicial notice.
…An expert who testifies to having consulted a particular chapter in a book in formulating an opinion can be cross-examined on this basis, including as to any statement therein that does not support the expert’s opinion.4 This is in keeping with the familiar rule that experts can be cross-examined about anything they review in preparing for their trial testimony.
It has long been held that cross-examination along these lines is proper when an expert acknowledges familiarity with or recognizes particular books as standard works.5 In addition, it is well settled that “[w]here an expert testifies that he has read the treatise [about which the expert is being questioned], the scope of the examination may be broader.”6 Of course, “this practice is not limited to those cases in which the expert admits that he has read the book or article concerning which he is being questioned.”7
The classic formulation permits cross-examination of an expert with a work of the type commonly relied upon in the profession and which the expert admits is authoritative.8 Since experienced and well-prepared expert witnesses often seek to frustrate this line of inquiry by refusing to recognize the authoritative nature of a work in whole or in part, opposing counsel seeking to impeach the expert through the use of literature should be equally well prepared with support for the questions posed.
…In New York courts, there is appellate precedent to support opposing counsel’s desire to continue impeachment through the use of literature even in the absence of the expert’s concession that the work is “authoritative” or when the expert disagrees with aspects of the material used for cross-examination. For example, in one malpractice case, the plaintiff’s medical expert agreed in part with portions of a treatise and relied in part on a published article. Significantly, on that appeal, the Appellate Division, First Department, held: “Given the expert’s reliance on the treatise in his direct examination and his testimony that he agreed with much of it, the physician could not foreclose full cross-examination by the semantic trick of announcing that he did not find the work authoritative.”11 This confirms that experts need not say specific magic words like “authoritative” before they are subject to impeachment through the use of learned texts.
Hat tips to CoverageCounsel and InsureReinsure (via twitter)
Governor David A. Paterson today announced that the Superintendent of the New York State Insurance Department, Eric R. Dinallo will resign his position and become the Henry Kaufman Visiting Professor of Finance at New York University’s Stern School of Business
Spring World Acupuncture, P.C. v NYC Tr. Auth., 2009 NY Slip Op 29229 (App. Term, 2nd)
In Mandarino v Travelers Prop. Cas. Ins. Co. (37 AD3d 775, 778 [2007]), involving a dispute
between an insurer and the assignee of the insured regarding the recovery of first-party no-fault benefits under the terms of an insurance policy, the Appellate Division, Second Department, held that, although the terms of the no-fault endorsement of the policy might have been mandated by statute, “this does not alter the fact that the dispute is fundamentally contractual in nature and not a creature of statute.” Accordingly, the Court held that the six-year statute of limitations set forth in CPLR 213 (2) was applicable to an action to recover first-party no-fault benefits.
Like the UM endorsement, the Personal Injury Protection Endorsement (no-fault [*3]endorsement) is also mandatory. Just as the rights and remedies of an injured claimant are set forth in the mandatory UM endorsement, so are the rights and remedies of an insured person set forth in the mandatory no-fault endorsement. Since the right to obtain UM protection from a self-insurer “is no less than the corresponding right under a policy issued by an insurer” (Matter of Country-Wide Ins. Co. [Manning], 96 AD2d 471, 472 [1983], affd 62 NY2d 748 [1984]), it follows that the right to obtain first-party no-fault coverage from a self-insurer is no less than the right to obtain the same from an insured under a policy (see Pinnacle Open MRI, P.C. v Republic W. Ins. Co., 18 Misc 3d 626 [2008]). Accordingly, we hold that an action to recover first-party no-fault benefits from a self-insured entity is subject to the same six-year statute of limitations as an action against an insurer pursuant to the policy. The Civil Court, therefore, should not have granted defendant’s motion for summary judgment dismissing the complaint.
A.B. Chiropractic, P.C. v Utica Mut. Ins. Co., 2009 NY Slip Op 51022(U) (App. Term, 2nd)
The sole issued raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the documents submitted in opposition to plaintiff’s motion, including the affirmation of defendant’s attorney, the copies of [*2]transcripts of witness statements and testimony, as well as the affidavits of defendant’s no-fault specialist and investigator, were sufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. at 199). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.
Golia and Steinhardt, JJ., concur.
Weston, J.P., dissents in a separate memorandum.
Weston, J.P., dissents and votes to affirm the judgment in the following memorandum.
I find that the documents submitted in opposition to plaintiff’s motion were insufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus, the judgment should be affirmed.
Decision Date: May 22, 2009
Advanced Med., P.C. v Utica Mut. Ins. Co., 2009 NY Slip Op 51023(U) (App. Term, 2nd)
In order for defendant to raise a triable issue of fact based on the assignor’s failure to appear at scheduled EUOs, defendant had to demonstrate that its initial and follow-up requests for verification were timely (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]) and establish, by an affidavit of one with personal knowledge, that the assignor failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant failed to establish that the EUO scheduling letters were [*2]timely mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to demonstrate that the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8) was tolled. As a result, defendant failed to establish that its denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
However, defendant was not precluded from asserting the defense that the alleged injuries do not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon our review of the record, the documents submitted in opposition to plaintiff’s motion, including the affirmation of defendant’s attorney, the copies of transcripts of witness statements and testimony, as well as the affidavits of defendant’s no-fault specialist and investigator, were sufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do not arise out of an insured incident” (Central Gen. Hosp. at 199). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.
A.B. Med. Servs., PLLC v Motor Veh. Acc. Indem. Corp., 2009 NY Slip Op 51025(U) (App. Term, 2nd)
Cornell Med., P.C. v Mercury Cas. Co., 2009 NY Slip Op 29228 (App. Term, 2nd)
Pursuant to CPLR 3025 (b), a party may amend its pleading at any time by leave of the court, and leave shall be freely given upon such terms as may be just. It is within the court’s discretion whether to allow a party to amend its pleading (Murray v City of New York, 43 NY2d 400, 404-405 [1977]; Lanpont v Savvas Cab Corp., 244 AD2d 208, 209 [1997]). Among the factors which a court must consider in making this determination is whether the proposed amendment is meritorious (Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170 [1989] ["Where a proposed defense plainly lacks merit, however, amendment of a pleading would serve no purpose but needlessly to complicate discovery and trial, and the motion to amend is therefore properly denied"]; Ancrum v St. Barnabas Hosp., 301 AD2d 474, 475 [2003]). In our opinion, since defendant’s proposed counterclaim pertains to a defense which is precluded due to defendant’s untimely denials, the Civil Court properly denied the branch of defendant’s motion seeking leave to amend the answer to assert the counterclaim.
Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co., 2009 NY Slip Op 51026(U) (App. Term, 2nd)
At the trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that plaintiff established its prima facie case. Plaintiff then made a motion in limine to have the court accord the December 2005 order, deciding a summary judgment motion in a prior case between the parties, collateral estoppel effect in the instant action. In the prior action, plaintiff rendered services to a different assignor for injuries he sustained in the same accident as the assignor herein, and the order found that the affidavit of defendant’s investigator was insufficient to support a founded belief that the loss did not arise out of an insured incident. In the case at bar, the Civil Court denied plaintiff’s motion.Defendant’s sole witness at trial was its investigator, and during her testimony, plaintiff did not object to the admission into evidence of several auto claim service records, the insurance policy, claim forms, and denial of claim forms. The court found in favor of defendant and dismissed the complaint, holding that defendant “established that the assignor in this case was involved in an insurance fraud scheme with the intent to defraud the carrier for medical benefits.” The instant appeal by plaintiff ensued.
In support of its motion, plaintiff failed to show that the identical issues were decided in the prior action, and [*2]are decisive in the present action (see Luscher v Arrua, 21 AD3d 1005 [2005]). Moreover, a review of the record indicates that defendant met its burden of proving that the loss did not arise out of an insured incident. Accordingly, the Civil Court properly awarded judgment dismissing the complaint.
A.M. Med. Servs., P.C. v GEICO Ins. Co., 2009 NY Slip Op 51029(U) (App. Term, 2nd)
While defendant’s cross motion was served 16 days later than the date the court fixed for service of said cross motion, it was served more than 4 months before the motion and cross motion were returnable and plaintiff submitted papers in opposition to the cross motion. Consequently, the Civil Court did not improvidently exercise its discretion when it considered defendant’s untimely cross motion since plaintiff did not demonstrate that it suffered any prejudice as a result of defendant’s delay (see e.g. Vallorani v Kane, 20 Misc 3d 138[A], 2008 NY Slip Op 51559[U] [App Term, 2d & 11th Jud Dists 2008]).
In the case at bar, the so-ordered stipulation did not schedule plaintiff’s EBT for January 16, 2004. Rather, it directed plaintiff to appear for an EBT on or before January 16, 2004. Defendant, however, did not show that plaintiff failed to comply with the stipulation since defendant failed to establish that an EBT of plaintiff was scheduled for January 16, 2004, or any other date, for which plaintiff failed to appear. Consequently, defendant’s cross motion should have been denied. Accordingly, the judgment is reversed, and defendant’s cross motion to strike the complaint is denied.
Bath Med. Supply, Inc. v Utica Mut. Ins. Co., 2009 NY Slip Op 51030(U) (App. Term, 2nd)
At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff sought to admit into evidence the claim forms at issue and the assignment of benefits, as well as the denial of claim forms issued by defendant. After defendant’s objection to the admission of said documents was sustained, plaintiff orally moved for the admission into evidence of its notice to admit and defendant’s response thereto, contending that they, and defendant’s affidavit in opposition to plaintiff’s prior motion for summary judgment, which motion was withdrawn, were sufficient to establish plaintiff’s prima facie case. The court similarly sustained defendant’s objection to the admission of the foregoing documents. After plaintiff rested, the court granted defendant’s motion pursuant to CPLR 4401 for a directed verdict dismissing the complaint for failure to prove a prima facie case. The instant appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.
At trial, “it remained plaintiff’s burden to proffer evidence in admissible form, i.e., by [*2]introducing into evidence the claim form[s] in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form[s] as . . . business record[s], which plaintiff failed to do. Accordingly, in light of plaintiff’s failure to establish the admissibility of its claim form[s] as . . . business record[s], plaintiff did not establish a prima facie case and defendant was entitled to judgment dismissing the complaint” (Bajaj v General Assur. Co., 18 Misc 3d 25, 28-29 [App Term, 2d & 11th Jud Dists 2007] [citation omitted]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]). Accordingly, the judgment is affirmed.
Vista Surgical Supplies, Inc. v New York Cent. Mut. Fire Ins. Co., 2009 NY Slip Op 51031(U) (App. Term, 2nd)
Defendant’s supporting affidavit stated that defendant did not receive the claims at issue prior to the commencement of the action while, at the same time, stating that it received the claims on specified dates prior to the commencement of the action and thereafter timely denied same. In view of the foregoing inconsistency, defendant’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).In any event, as argued by plaintiff in the Civil Court and on appeal, the affirmed peer review reports defendant submitted in support of its motion for summary judgment indicate that [*2]the “signature” upon each report appears to be identical, thereby raising an issue of fact as to whether the purported signatures were in compliance with CPLR 2106 (see General Construction Law § 46; Mani Med., P.C. v Eveready Ins. Co., 18 Misc 3d 140[A], 2008 NY Slip Op 50395[U] [App Term, 2d & 11th Jud Dists 2008]; Macri v St. Agnes Cemetery, Inc., 44 Misc 2d 702 [Sup Ct, NY County 1965]). Such issue of fact may not be resolved 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., 18 Misc 3d 140[A], 2008 NY Slip Op 50395[U]). Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.
V.S. Med. Servs., P.C. v Travelers Ins. Co., 2009 NY Slip Op 29226 (App. Term, 2nd)
Following two adjournments, the case was dismissed on March 13, 2006 because of plaintiff’s lack of readiness to proceed. Plaintiff’s counsel served proof of the dismissal on defendant’s attorney on August 21, 2007, with notice of its entry on March 13, 2006.On November 6, 2007, plaintiff moved to vacate the order of dismissal and restore the matter to the trial calendar. Plaintiff’s counsel submitted an affidavit from counsel’s employee, Polina Shvartsberg, who stated that she is responsible for calendaring counsel’s trial dates and that she failed to do so in this matter. Consequently, plaintiff’s counsel was unprepared for trial.
Plaintiff’s counsel also submitted an affidavit from Leonid Rosin, M.D., plaintiff’s “corporate operating officer,” who stated that he was personally familiar with plaintiff’s [*2]procedures concerning the creation and maintenance of plaintiff’s business records and that the claim forms attached to his affidavit were such records. Dr. Rosin stated, among other things, that the forms pertained to treatment rendered, that they had been made contemporaneously to such treatment, and that they had been submitted to defendant, but that no payment had been received. Based on these submissions, plaintiff maintained that it had a reasonable excuse for counsel’s failure to proceed, as well as a meritorious cause of action sufficient to vacate the default.
The Civil Court denied plaintiff’s motion, concluding that plaintiff “has failed to show a reasonable excuse for its delay, as well as a meritorious cause of action, lack of prejudice to the defendant and a lack of intent to abandon this action.” The court added that plaintiff’s motion was untimely, as the matter had been marked off the calendar for more than a year.
Plaintiff now appeals, claiming that the Civil Court should have granted its motion to vacate the default pursuant to CPLR 2005 and CPLR 5015. We affirm.
A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 2009 NY Slip Op 51016(U) (App. Term, 2nd)
An insurance carrier’s 30-day period in which to either pay or deny a claim may be extended where the insurer submits, within 15 business days of its receipt of the NF-3 claim form, a request for additional verification (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 100 [2005]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584-585 [2002]). “A claim need not be paid or denied until all demanded verification is provided” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). Since the affidavit of defendant’s no-fault litigation supervisor lacks specificity to support the assertion that defendant did not receive the verification it requested, it was insufficient to establish that the verification was still outstanding and, thus, that defendant’s time to pay or deny the claims was tolled (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729 [2007]; Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981 [2007]; cf. Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 [2008]). As a result, the claims by plaintiff A.B. Med. in the sums of $361.46, $361.46, $1,546.20, $501.76, $71.06, $1,573.24 and $569.36, and the claims by plaintiff RW Health Plus Chiropractic, P.C. (RW Health) in the sums of $290.64, $269.60 and $134.80 are overdue (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), and A.B. Med. and RW Health are entitled to summary judgment upon said claims (see Westchester Med. Ctr., 45 AD3d 676).
Plaintiffs’ contention that defendant’s submissions from the acupuncturist who performed the peer reviews were insufficient to raise a triable issue of fact with respect to the claims submitted by Lvov Acupuncture, P.C. (Lvov) is correct. Since the acupuncturist’s peer review reports were unsworn, the reports were of no probative value (see Dowling v Mosey, 32 AD3d 1190 [2006]; Macri v St. Agnes Cemetery, 44 Misc 2d 702 [1965]). Accordingly, defendant’s submissions failed to raise a triable issue of fact as to medical necessity with respect to Lvov’s claims in the sums of $650.50, $248.28 and $435.98, and Lvov is entitled to summary judgment upon said claims.
AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 2009 NY Slip Op 51017(U) (App. Term, 2nd)
Defendant established its prima facie entitlement to summary judgment by showing that it timely mailed its denial of claim forms, which partially denied plaintiff’s claims on the ground that the fees charged by plaintiff exceeded the maximum allowance under the applicable fee schedules. Contrary to plaintiff’s contention, the affidavit submitted by defendant, from one of its employees in its claims division, sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). For the reasons stated in 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 21 sessions (see Ava Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been granted.
What does it feel like to read all these decisions, day after day, month after month, and year after year? Put this on repeat and play at half volume for two hours and you’ll know.
is 6 years, not 3.
According to the Appellate Term, 2nd Dept.
Melissa Pirillo, Esq. wrote the appeal and James Casteau Croteau, Esq., argued it. Both are attorneys at Baker, Sanders, Barshay, Grossman, Fass, Muhlstock and Neuwirth.
But my computer is on its way out. My daughter has managed to cake the screen in peanut butter & jelly, ink from various pens, and dog slobber. While destroying the screen she managed to hit every key on the keyboard and mouse, screwing the computer up further. My poor old computer has had enough and is rebelling, which is understandable–as things get older they become bitter and stop cooperating. So if there are any complaints about the frequency or quality of the posts as of late, please direct them to my daughter or the computer. Neither of them will care.
If you really want to complain to me, feel free. But understand that I will dismiss you as stupid and spend the rest of my day making fun of you. I’ll probably draw some pictures too. You won’t like them. Everyone else will.
That said, some new cases came out. A report was issued. And bloggers might be getting a break.
Cabrera v Allstate Ins. Co., 2009 NY Slip Op 29214 (App. Term, 1st, 2009)
In this action to recover uninsured motorist benefits arising out of a vehicular accident which occurred in Bronx County, defendant moved for, and was granted, summary dismissal of the complaint on the ground that the forum selection clause in the governing automobile insurance policy mandated the removal of the action to Connecticut. While the first paragraph of the policy’s forum selection clause provides that “[s]ubject to the following two paragraphs . . . any and all lawsuits in any way related to this policy, shall be brought . . . only in a state or federal court located in Connecticut,” the second paragraph states that if a “covered auto accident . . . happens outside Connecticut, lawsuits regarding that covered auto accident . . . may also be brought in the judicial district where that . . . covered auto accident . . . happened.” When the whole clause is read in context, it is clear that plaintiffs were entitled to bring suit in the judicial district where the accident occurred. Accordingly, dismissal of the action, insofar as it rested on the policy’s forum selection clause, was improper.
Upon our review of the record (see Ghose v CNA Reins. Co. Ltd., 43 AD3d 656, 660 [2007]), we find that defendant failed to “carry its heavy’ burden of challenging plaintiffs’ choice of forum” (Hudson Ins. Co. v M.J. Oppenheim, 35 AD3d 168, 168-169 [2006]). Although defendant’s insured is a Connecticut resident, there is a substantial nexus to this jurisdiction, it being uncontroverted that plaintiffs are all residents of New York (see Sweeney v Hertz Corp., 250 AD2d 385 [1998]; see also Hudson Ins. Co. v M.J. Oppenheim, 35 AD3d 168 [2006]), and that the accident occurred in New York (see Hoogenboom v Gilmore, 278 AD2d 895 [2000]). Nor has defendant shown any potential hardship in defending the action in New York. While the choice-of-law issues presented by this litigation have not yet been adjudicated, [*2]New York courts are capable of applying Connecticut law should that necessity arise (see Traveler Cas. & Sur. Co. v Honeywell Int. Inc. 48 AD3d 225, 226 [2008]; Continental Ins. Co. v Garlock Sealing Tech., LLC, 23 AD3d 287 [2005]).
Star Med. Supply v Farmington Cas. Co., 2009 NY Slip Op 50971(U) (App. Term, 2nd, 2009)
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on its claim, arising on October 9, 2002, in the sum of $449.50. Defendant opposed plaintiff’s motion, arguing that plaintiff failed to establish that the claim was submitted to defendant. The Civil Court denied plaintiff’s motion on the ground that plaintiff had failed to prove its prima facie entitlement to summary judgment, because plaintiff had failed to lay a sufficient foundation to establish that the documents annexed to plaintiff’s motion constituted evidence in admissible form. This appeal by plaintiff ensued.
Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment by proof that it submitted the statutory claim form, 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]). Contrary to defendant’s contention on appeal, plaintiff’s affidavit sufficed to established that the annexed claim form constituted evidence in admissible form (see CPLR 4518; Dan Med., [*2]P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). However, the affidavit failed to establish submission of the claim form. In addition, defendant’s denial of claim form annexed to plaintiff’s moving papers did not constitute an admission that defendant received the claim form at issue since the denial of claim form pertained to a claim arising on a date, December 2, 2002, and sought payment of a sum, $842, different from the claim at issue in this case. Consequently, the denial of plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.
The Insurance Dept issued its annual report to the legislature. Roy over at CoverageCounsel was nice enough to post about it.
Eric Turkewitz reports that NY’s shield law, the one that protects journalists from being forced to testify about their sources may be amended to include bloggers under a new bill. Those that comment here should appreciate the import of this.
Finally, when you get a chance, check out these blogs (they get plenty of traffic, I’m putting them here for your benefit, and so I’ll have something to talk about in Court):
New York Injury Cases Blog
New York Personal Injury Law Blog
Sui Generis
Simple Justice (Yes, I know it has nothing to do with no-fault or even personal injury, but I check it several times a day. You should too. You’ll thank me.)
148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 2009 NY Slip Op 03793 (App. Div., 1st, 2009)
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered July 23, 2008, which denied defendant-appellant Public Contracting NYC, Inc.’s motion for a protective order and to quash a subpoena served by defendant-respondent Merrimack Mutual Fire Insurance Company, unanimously affirmed, with costs.
The demanded documents consist of a file reflecting the results of an investigation performed by appellant’s insurance carrier’s agent regarding the underlying fire incident which resulted in the instant litigation. The burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes of the underlying immunity (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]).
A trial court is vested with broad discretion regarding discovery, and its determination will not be disturbed absent a demonstrated abuse of that discretion (see Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 41 AD3d 362, 364 [2007], affd 11 NY3d 843 [2008]; Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190 [2005]). Here the motion court properly determined that the documents were not protected because appellant failed to demonstrate that the investigation was conducted solely in anticipation of litigation. Such reports of insurance investigators or adjusters prepared during the processing of a claim are discoverable in the regular course of the insurance company’s business (see Brooklyn Union Gas Co., 23 AD3d at 190; Roman Catholic Church of the Good Shepherd v Tempco Sys., 202 AD2d 257 [1994]).
Compare this decision with an earlier post on whether EUO reports prepared by counsel are privileged.
As far as no fault is concerned, it doesn’t look like any investigation conducted at the claim stage is prepared in the course of litigation. Those investigations are done to verify claims. To claim that they are done in anticipation of litigation appears to be contary to the spirit and plain wording of the no-fault regulation.
Taking it one step further, even if they were done in anticipation they are discoverable, the privilege is usually waived through a summary judgment or discovery motion. And if not waived, the materials are only “conditionally protected under CPLR 3101(d)(2).” See generally, People v. Kozlowski, 2008 NY Slip Op 07759, (Ct. App., 2008). The “test for overcoming the conditional protection of trial preparation materials, i.e., a “substantial need” because the defendants could not obtain the “substantial equivalent of the materials” without “undue hardship.” Id. In these cases, the plaintiffs’ need for the documents in unquestionable. And plaintiffs cannot get the information from any other source.
