Prima Facie Staged accident November 19, 2018

Jamaica Wellness Med., P.C. v Hereford Ins. Co., 2018 NY Slip Op 51586(U)(App. Term 2d Dept. 2018)

“In support of its motion, defendant submitted a transcript of the examination under oath (EUO) of its insured in which he testified that he had picked up three customers and had been driving them to their destination when they repeatedly asked him to give them money. After he declined to do so, he was pulled over by the police, who advised him that the passengers had reported that the vehicle had been in an accident with another vehicle which had fled from the scene. Defendant’s insured testified that the vehicle had not been in an accident while the passengers had been in the car. The EUO testimony by defendant’s insured was sufficient to demonstrate, prima facie, that “the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).”

Jamaica Wellness Med., P.C. v Hereford Ins. Co., 2018 NY Slip Op 51587(U)(App. Term 2d Dept. 2018)

LVOV Acupuncture, P.C. v Hereford Ins. Co., 2018 NY Slip Op 51589(U)(App. Term 2d Dept. 2018)

Is it ironic that Danny Safire, the purported owner of Jamaica Wellness Med was indicted at or about the time these cases were decided?  The fact that an attorney would appeal a case with these facts speaks volumes about so much.  I would have run for cover if I was a Plaintiff.  But read the indictment…



The existence of a workers compensation award is lack of coverage November 19, 2018

Active Care Med. Supply Corp. v Hartford Ins. Co., 2018 NY Slip Op 51591(U)(App. Term 2d Dept. 2018)

“Contrary to plaintiff’s contention, a lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its motion, and by plaintiff in support of its cross motion, established that plaintiff had submitted claims for workers’ compensation benefits and that the Workers’ Compensation Board had awarded plaintiff’s assignor workers’ compensation benefits [*2]for injuries she had sustained in the accident at issue. As plaintiff failed to demonstrate the existence of a triable issue of fact, the order is affirmed.”

This changes the calculus a bit.  While the existence of Workers Compensation coverage is precludable, the actual proof and fact of the workers compensation coverage is a coverage defense.  In actuality, the regulation states that Workers Compensation Coverage is the only type of coverage that will pay medical billings when the choice is between No-Fault and Compensation.  But, the Second Department has held it is an offset.  Perhaps as to lost wages, but not as to medical billings.

Nationwide took an ax to Unitrin November 18, 2018

Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 2018 NY Slip Op 07850 (4th Dept. 2018)

(1) “We conclude that a defense premised upon nonappearance at an EUO is “more like a normal’ exception from coverage (e.g., a policy exclusion)” than one involving “a lack of coverage in the first instance (i.e., a defense implicat[ing] a coverage matter’)” (Fair Price Med. Supply Corp., 10 NY3d at 565; see also Hospital for Joint Diseases, 9 NY3d at 319-320; Presbyterian Hosp. in City of N.Y., 90 NY2d at 281-286; see generally Central Gen. Hosp., 90 NY2d at 199). Unlike defenses where preclusion thereof would result in coverage where it never existed, such as those premised upon the lack of a contract with the person claiming coverage or for the vehicle involved in the accident, the termination of the contract prior to the accident, or the cause of the purported injuries being something other than a vehicular accident (see Hospital for Joint Diseases, 9 NY3d at 319; Central Gen. Hosp., 90 NY2d at 200; Zappone v Home Ins. Co., 55 NY2d 131, 136-138 [1982]), the EUO nonappearance defense allows the insurer to avoid liability for the payment of no-fault benefits where the insured or assignee has breached a condition in an existing policy providing coverage”

(2) “We further agree with defendant that, contrary to the court’s determination and Nationwide’s contention, our holding in Interboro Ins. Co. v Tahir (129 AD3d 1687 [4th Dept 2015]) is not controlling. The no-coverage exception to the preclusion remedy was not at issue and the insurer disclaimed coverage in that case; thus, it is factually distinguishable and legally unpersuasive inasmuch as the broad language regarding vitiation of the contract for failure to comply with a condition precedent was not central to the holding and did not account for the conceptual differences between types of conditions precedent (see id. at 1688).”

What saddens ms it that Tahir was my case.  It is also remarkable that the Court did not examine NYP v. C-Wide.  I also am upset that nobody sought to really delve into the policy language itself, and to contrast it with the notion of a condition precedent in other contexts.

The issue is one step closer to Court of Appeals scrutiny.{F23F2521-D06B-4824-8ADD-F51A30AD02B8}

Oral Argument Start time: 27:20

Mr. Ortega, why did you lie to us? November 15, 2018

Ortega v Healthcare Servs. Group, Inc., 2018 NY Slip Op 07568 (4th Dept. 2018)

(1) “Plaintiffs commenced this action seeking damages for injuries Rose Ortega (plaintiff) allegedly sustained as a result of a slip and fall that occurred at a facility, which was maintained by defendant. Following the damages phase of a bifurcated trial, the jury awarded plaintiff $4,200 for past pain and suffering, $3,300 for past lost wages, and $2,500 for past medical expenses. Plaintiffs moved to set aside the verdict as against the weight of the evidence on the issue of damages, and for a new trial thereon (see CPLR 4404 [a]).”

(2) “Defendant appeals from an order that, inter alia, granted the motion and ordered a new trial on damages unless defendant stipulated to increase the award for past pain and suffering to $300,000”

(3) “Here, the central issue at the damages trial was whether plaintiff’s claimed shoulder and cervical spine injuries were causally related to the subject fall, or if they resulted from unrelated prior motor vehicle accidents or other unrelated incidents or conditions. Given the conflicting evidence on that issue, plaintiff’s selective and incomplete disclosure of her health history to her healthcare providers and the examining physicians, and her inability to recall prior accidents and injuries during cross-examination, we conclude that the verdict on damages is not against the weight of the evidence because a fair interpretation of the evidence supports the jury’s determination that plaintiff’s shoulder and cervical spine injuries were unrelated to the subject fall and that the only injury sustained by plaintiff in the fall was a knee sprain.”

Stipulation not strictly enforced November 14, 2018

RCS Recovery Servs., LLC v Mensah, 2018 NY Slip Op 07766 (2d Dept. 2018)

The Court really went out on a limb here and did the right thing.  Question – was it correct legally?  They said so.

(1) In 2007, the defendant borrowed $74,000 from the plaintiff’s predecessor-in-interest, Wells Fargo Bank, N.A., as evidenced by a note, which provided that he would repay the sum due, with interest at the rate of 9.5% per year. The defendant allegedly defaulted on the note on June 17, 2010, and this action ensued. On December 6, 2013, with the defendant’s consent, judgment in the total sum of $95,083.08 was entered in favor of the plaintiff and against the defendant.

(2)On July 2, 2014, the parties entered into a stipulation of settlement whereby the plaintiff agreed to accept the sum of $65,000 in full settlement of the judgment. An initial $5,000 payment was made on or about the date of the stipulation, and the remaining $60,000 was to be paid in monthly installments of $5,000, due on the 25th day of each month. The parties agreed that the judgment would remain as a lien on the defendant’s property until full payment of the amounts owed under the stipulation

(3)  After paying a total of $45,000 without incident, the defendant inadvertently missed a payment due on March 25, 2015. By letter dated April 7, 2015, the plaintiff notified the defendant that he was in default and informed him of its election to continue to enforce the judgment pursuant to the terms of the stipulation.  The defendant avers that he attempted, in good faith, to cure his default, but the plaintiff refused and insisted upon full payment of the amount owed under the judgment, which was more than double what was still owed under the stipulation.”

(4a) However, under the circumstances of this case, the Supreme Court should have granted the alternate branch of the defendant’s motion, which was, in effect, to preclude the plaintiff from enforcing the default provision of the stipulation without affording the defendant a reasonable opportunity to cure his default. “Under almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief” (Goldstein v Goldsmith, 243 App Div 268, 272; see Weitz v Murphy, 241 AD2d 547, 548; Bank of N.Y. v Forlini, 220 AD2d 377, 378).

(4b) Here, the defendant’s default was inadvertent and minor in nature when measured against the harsh result that would be obtained upon literal enforcement of the default provision in the stipulation (see Bank of N.Y. v Forlini, 220 AD2d at 378). Insofar as the plaintiff failed to offer the defendant any opportunity to cure his default before seeking to recover the full amount due under the judgment, the plaintiff’s conduct could be interpreted as an attempt to take advantage of a technical default to obtain payment of the far greater sum which the plaintiff had originally sought, but agreed to forgo as part of the settlement (compare Weitz v Murphy, 241 AD2d at 548-549 and Bank of N.Y. v Forlini, 220 AD2d at 378, with McKenzie v Vintage Hallmark, 302 AD2d 503, 504).

Look, it is a great case.  It definitely takes some of the sting out of inadvertent stupidity.