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Degeneration from the App Div May 22, 2018

Campbell v Drammeh,  2018 NY Slip Op 03643 (1st Dept. 2018)

In opposition, plaintiff failed to raise an issue of fact as to his claimed spinal injuries, since he submitted no opinion about whether those injuries were caused by the accident, rather than degeneration (see Walker, 132 AD3d at 478—79), and no evidence of treatment (see Pommells, 4 NY3d at 572). As for his right shoulder claim, plaintiff’s orthopedic surgeon opined before performing surgery that any injuries were causally related to the accident. However, he failed to address or explain either the findings in plaintiff’s own MRI of hypertrophic changes and of no acute fracture or dislocation. He also did not address his own operative finding of bursitis (see Franklin v Gareyua, 136 AD3d at 465-466; Walker, 132 AD3d at 478—479). Moreover, plaintiff provided no explanation for his complete cessation of treatment after the surgery (see Pommells, 4 NY3d at 574; Baez v Rahamatali, 24 AD3d 256 [1st Dept 2005], affd 6 NY3d 868 [2006]; Frias v Son Tien Liu, 107 AD3d 589, 590 [1st Dept 2013]).

Ouch May 14, 2018

Pascocello v Jibone, 2018 NY Slip Op 03466 (1st Dept. 2018)

“An expert’s opinion “must be based on facts in the record or personally known to the witness” (Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984] [internal quotation marks omitted]; see Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]), and in the absence of such record support, an expert’s opinion is without probative force (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Here, Supreme Court properly precluded Dr. Toosi from offering an opinion based on photographs for which no proper foundation had been established.

Mailing to the attorney May 14, 2018

Global Liberty Ins. Co. v New Century Acupuncture, P.C., 2018 NY Slip Op 03444 (1st Dept. 2018)

“Plaintiff sent an initial IME scheduling letter, and a re-scheduling letter, to both Davis and her attorney. After Davis failed to appear for the re-scheduled IME, plaintiff sent a third letter to the attorney, which indicated on its face that a copy had been sent to Davis. However, it is undisputed that the letter to Davis was sent to the wrong address. Thus, there was no reason for the attorney to know that Davis had not received notice of the re-scheduled IME and to tell her of the new IME date and location. Under these circumstances, the motion court properly found that plaintiff failed to demonstrate that it provided adequate notice, reasonably calculated to apprise Davis that her appearance at an IME at a specified date and location was required”

 

 

 

What is substantial evidence? May 9, 2018

Matter of Marine Holdings, LLC v New York City Commn. on Human Rights, 2018 NY Slip Op 03303 (2018)

Every Article 75 compulsory arbitration case involving legal insufficiency or credibility of evidence claims is subjected to a substantial evidence review.  The term is a misnomer as we learned this week from the Court of Appeals:

“”Quite often there is substantial evidence on both sides” of an issue disputed before an administrative agency (Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 500 [2011]), and the substantial evidence test “demands only that a given inference is reasonable and plausible, not necessarily the most probable” (id. at 499 [internal quotation marks and citation omitted]). Applying this standard, “[c]ourts may not weigh the evidence or reject [a] determination where the evidence is conflicting and room for choice exists” (Matter of State Div. of Human Rights (Granelle), 70 NY2d 100, 106 [1987]). Instead, “when a rational basis for the conclusion adopted by the [agency] is found, the judicial function is exhausted. The question, thus, is not whether [the reviewing court] find[s] the proof . . . convincing, but whether the [agency] could do so” (id. [citations omitted]).”

The Court’s abdication of the ability to review administrative awards that are inherently questionable but not “off the charts wrong” is improper.  We have three levels here.  The first is that the award has support.  The second is the award smells bad.  The third is the award is “off the charts wrong”.

We all agree the Courts have no business addressing level 1 and must address level 3.  It is level 2 that forms the basis of so many appeals.  I only suggest that a deeper look at level 2 cases is warranted.  The dissent (I did not publish it) did just that.

For the All on NY fans: you were wrong. May 4, 2018

Hereford Ins. Co. v Lida’s Med. Supply, Inc., 2018 NY Slip Op 03226 (1st Dept. 2018)

(1) “While plaintiff’s notice of motion did not specify that it was solely moving for summary judgment on its first cause of action, its attorney’s affirmation shows that they were limiting the relief sought to this claim.” (if this is a volume business a pro-forma motion, then why not have a software system that indicates this)

(2) “When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it “constitutes a breach of a condition precedent vitiating coverage””

(3) “Here, plaintiff established its entitlement to judgment as a matter of law by submitting the letters sent to each claimant notifying them about the date, time, and location of the initially scheduled IME and a second scheduled IME and affidavits of service for these letters. Plaintiff also submitted affidavits from each medical professional assigned to conduct the scheduled IME, with each stating that the medical professional was in his or her office at the date and time of the scheduled IME, the respective claimant failed to appear, the appointment was kept open until the end of the day, and at the end of the day, the medical professional filled out the affidavit acknowledging the nonappearance.”

(4)”Because Hereford sent the notices scheduling the IMEs prior to the receipt of each of the claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply (see Mapfre at 469). Furthermore, plaintiff was not required “to demonstrate [*2]that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424-25 [1st Dept 2013]]).”

Two things to take from this.

First, the All of NY case was limited to a provider EUO no show DJ predicated upon a record missing demonstrative evidence.  In contrast,  this was the boilerplate IME no-show DJ.  The result makes sense and is consistent with prior precedent.

Second, I think the proof of the no-show here is a lot less than the line of cases that the Appellate Term, First Department created.  But this would make sense when you look at how these panel judges when all of them sat in no-fault land (Civil and Supreme Court DJ parts).