Blog

The 8-unit email from Heather MacMaster (WCB) to Chris Maloney (DFS) February 24, 2018

You asked for it.  Here it is.  Riveting reading.

Good hands people launched a less than laudable appeal February 24, 2018

Allstate Ins. Co. v Longevity Med. Supply, Inc., 2018 NY Slip Op 50238(U)(App. Term 1st Dept. 2018)

“There was a rational basis, based on the no-fault regulations, for the master arbitrator’s finding that respondent-medical provider’s proof was sufficient to establish that (1) it responded to the verification demands sent by petitioner, and (2) that petitioner was therefore required, but failed, to rebut the presumption of receipt of the verification, or show that it timely acted upon receipt by paying or denying the claim, or seeking further verification. The master arbitrator’s legal analysis of the arbitrator’s determination was well within the scope of her authority to review and correct an error of law made by the arbitrator”

I do not what the purpose of this appeal was except to maximize on hourly billing.  Perhaps i am missing something and need enlightenment.

Use and operation February 24, 2018

Matter of New York City Tr. Auth. v Physical Medicine & Rehab of NY PC,  2018 NY Slip Op 01260 (1st Dept. 2018)

“Contrary to petitioner’s arguments, the facts of this case are distinguishable from those in Cividanes v City of New York (20 NY3d 925 [2012]), in which the Court of Appeals found that benefits were not available under the no-fault Insurance Law because the plaintiff’s injury did not arise out of the “use or operation of a motor vehicle” (Insurance Law § 5104[a]). In that case, the plaintiff exited a stopped bus and fell when she stepped into a hole in the street. The Court determined that the bus was neither a “proximate cause” nor an “instrumentality” that produced her injury (id. at 926 [internal quotation marks omitted]; see also Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211 [1996]).

Here, the bus driver activated the lift device of the bus to assist Valerie Mathis when she boarded the bus. Subsequently, when she was exiting the bus, the bus driver refused to activate the lift device or to lower the bus. As a result, she was forced to place her walker out in the street, and then fell over while attempting to exit the bus.”

________

I do not buy this at all.  The cited to case (civadenes) notes that when you step off a bus and get hurt, there is no coverage.  Same facts here, except the lift device was not activated.  As a college friend during a drinking game would say: “I call bull****”.  I could not resist.

Carothers to the COA (I missed it) February 21, 2018

Andrew Carothers, M.D., P.C. v Progressive Insurance Company, 2017 NY Slip Op 90794(U)(2d Dept. 2017)

For some reason, I missed this decision and order.  I read the Court of Appeals order stating that the court was without jurisdiction to grant leave.  Some of you may be unaware that the Court of Appeals may not grant leave to hear a civil cause that starts in the Civil Court, District Court, City Court, Justice Court, County Court (first or second departments), Town Court or Village Court.  On the criminal side, an appeal from one of the above Courts to the Appellate Term or County Court (upstate) bypasses the Appellate Division and goes to the Court of Appeals (if leave is granted).

I was unaware that following the Court of Appeals order, Carothers went back to the Second Department and sought leave to appeal.  Furthermore, I also was unaware that leave was actually granted.  This will mean that this matter will result in four published opinions.  Judge Sweeney, Appellate Term (it was not a U cite), Appellate Division (signed opinion) and now the Court of Appeals.

“ORDERED that the motion is granted, and the following question is certified to the Court of Appeals: Was the opinion and order of this Court dated April 5, 2017, properly made?

Questions of law have arisen, which, in our opinion, ought to be reviewed by the Court of Appeals (see CPLR 5713).”

Who would have thought.

Familiarity with predecessor business record practice February 21, 2018

US Bank N.A. v Ballin, 2018 NY Slip Op 01212 (2d Dept 2018)

“Thrasher averred, in relevant part, that her affidavit was based upon her review of Ocwen’s business records, and that upon review of such records, the note was physically transferred to the plaintiff on December 1, 2006. The plaintiff failed to demonstrate that the records relied upon by Thrasher were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Thrasher, an employee of Ocwen, did not attest that she was personally familiar with the plaintiff’s record-keeping practices and procedures (see Bank of N.Y. v Willis, 150 AD3d 652, 653; Arch Bay Holdings, LLC v Albanese, 146 AD3d 849, 852; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 652). Thus, the plaintiff failed to establish, prima facie, that it had standing to commence the action.”

The question as you could imagine is what is sufficient to prove sufficiency of a prior entities practices.