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Priority of payment October 13, 2017

Easy Care Acupuncture, PC v MVAIC, 2017 NY Slip Op 51346(U)(App. Term 1st Dept. 2017)

“The parties’ respective submissions reveal the existence of triable issues of fact as to whether defendant partially exhausted the coverage by payments to another provider, and whether those payments were proper under the insurance department regulations.”

I am unsure how you even resolve the above-issue under the priority of payment regimen, since the opinion does not contain any facts.

Statute of Limitations – three versus six? October 13, 2017

Contact Chiropractic, P.C., as Assignee of Girtha Butler v N. Y. City Tr. Auth., 2017 NY Slip Op 88572 (2017)

Apparently, an entity that has NO stake in this battle, American Transit Ins. Co., felt the need to file an Amicus on this issue.  Should make for some light an highly relevant reading.

Assuming the Court reverses and finds that lawsuits against governmental entities is guided by a three year statute of limitation, ATIC will clearly benefit from a favorable ruling.  Logical right?  Oh Brooklyn Bridge, for how much do I sell thee?

“Motion by American Transit Insurance Company for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.”

Another silly appeal October 12, 2017

Narvaez v Sammartino, 2017 NY Slip Op 07187 (1st Dept. 2017)

Put this one in the file for “s” for silly.

“The motion court properly exercised its discretion under CPLR 2001 in granting plaintiff’s motion to renew, as the record shows that on the prior motion, plaintiff’s opposition was not considered due to counsel’s inadvertent failure to comply with the court’s part rules. Counsel’s error did not cause significant prejudice, and plaintiff has been ordered to reimburse defendants for any resulting costs and fees incurred (see CPLR 2001; DePompo-Seff v Genovese Drug Stores, Inc., 13 AD3d 109 [1st Dept 2004]).”

“Venue was properly laid in Bronx County, as plaintiff resided there when the complaint was filed (see CPLR 503[a]; Cardona v Aggressive Heating, 180 AD2d 572, 573 [1st Dept 1992]).”

For starters, the motion should not have been denied because violation of a “part rule” whether it be 1) Non-hard copy; or 2) Non tabbed exhibits, should never form the basis of a denial of the motion.  The “default” was properly vacated and the plaintiff resided in the Bronx when the action was commenced.

What compelling argument can be made that someone who lives in Suffolk cannot testify in Bronx?  Clearly defendant would rather have a Suffolk County jury than a Bronx jury…  Can we just call this what it is?

A new 68.6 is coming next year October 10, 2017

Rationality has finally reached us with the crazy New Jersey situation.   This will be published tomorrow and will be effect 1/8/18.

Over billing beware.

This regulation should have come out years ago.  I am grateful that it finally has been approved.  Now, CPM and other rental items need to be addressed, as that loop hole remains open.

 

2309 again – nothing different today October 10, 2017

Donsimoni v Fall, 2017 NY Slip Op 07092 (1st Dept. 2017)

“The fact that plaintiff’s lone affidavit of merit in opposition to defendant’s summary judgment was acknowledged by a vice-consul in the U.S. Embassy in Paris, France, yet was submitted without a requisite certificate of conformity (see CPLR 2309[c]; Real Property Law § 301, et seq.), constituted an irregularity that could be corrected nunc pro tunc, if necessary (see DaSilva v KS Realty, L.P., 138 AD3d 619 [1st Dept 2016]; Gyamfi v Citywide Mobile Response Corp., 146 AD3d 612 [1st Dept 2017])….”

It is amazing that the Court actually countenanced the certificate of conformity argument in the first place.