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Opening Courts with an e-filing system in place? Nope. May 26, 2020

The daily news stated something interesting yesterday and I will quote it:

“For the courts, the silver lining to the pandemic may be that it is pushing officials to update an antiquated system that still relies mainly on paper filings and in-person courthouse appearances.

“People can be set in their ways and sort of don’t like change,” said Marks. “If there’s one way to characterize the last few months, it would be change. Necessity is the mother of invention.”

I for one have been a fierce critic of the way the NY court system runs. For 17 years, what I have seen is a system that in part exists to keep people employed. I suppose everyone needs employment and if PCs, CC’s, SC’s and any other type of appearance can achieve that, then I do not want to be the one that prevents new attorneys, per diems and court staff from not earning a living. I for one would rather see the “PC” and “CC” replaced with a case management conference, followed with a conference order if a case does not have sufficient movement in 12 months after an RJI is filed. I tend to think the parties can probably chart their own course based on the premise that we have clients who want “justice”.

Perhaps a 5 minute discovery calendar at 8:30 AM by zoom could handle most rudimentary discovery disputes? Winner uploads the order. Works well in Fla. Motions by appointment in non motion submission jurisdictions? Limit these to 15-30 minutes depending on the complexity.

But what I think is absolutely necessary before we take the re-opening experiment any further is to implement and mandate e-filing. To tell me that we are going to allow 100,000 mailed in covid-filled paper summonses with checks in a litany of actions does not work. It is dangerous and backwards. I harken to say that in the four states I pracitcer in, only NY still uses paper for filings at all. In reality, the paper system stopped working 15 years ago when e-filing debuted federally. OCA did not read the memo and perhaps our stubbornness and lack of imagination allowed this to happen

I would have hoped in the 2-3 months we have been closed, OCA would have been replacing the paper filing of the lower courts with e-filing. At the very least, I would like a press conference that says they are doing this. Lack of a message leads me to believe that that is not happening, and now we have what I fear is a complete mess. How about keep the courts closed until July, get e-filing right and we can probably have a much smoother and healthier court opening? Why rush when we cannot have in person motion conferences and jury trials?

EUO Declaratory Judgment May 14, 2020

Nationwide Affinity Ins. Co. of Am. v George, 2020 NY Slip Op 02801 (2d Dept. 2020)

I think you have to read the docket here to understand what happened. It appears the mailing issues involved completion or lack of completion of apartment numbers. The record appears to show that various documents were with and without apartment numbers. The court thus was not going to disturb Supreme Court’s findings on the issues. The proof of no-show was based upon bust statements.

What was interesting is the mutual rescheduling issue. I could not find anything in the record supporting a mutual rescheduling of the first EUO. The Second EUO issue is interested. Defendant presented a bust statement where attorney Diamond was present and never mentioned his client’s were running late. Then, after this litigation was commended, Diamond presented an affirmation that his clients were running late.

The Court properly found an issue of fact was not raised. Had the carrier relief on affidavits (as opposed to bust statements), I think the outcome would differ. This has to be the first time I can state bust statements really made the difference.

Finally, the Court granted judgment despite four bills not being paid or denied – the basis for the disclaimer (besides EUO no show) that the bills were untimely submitted.

I suspect the Court did not like the provider’s hype-technical arguments that, on balance, had minimal record support and opened the Unitrin door, whether inadvertantly or otherwise. Tough loss for the provider, but these things do happen

Comparative Negligence not found May 14, 2020

Silverio v Ford Motor Co., 2020 NY Slip Op 02892 (1st Dept. 2020)

“The Court also stated that plaintiff did not need to prove that he was not comparatively negligent in order to obtain partial summary judgment on the issue of defendants’ liability, based on Rodriguez v City of New York (31 NY3d 312 [2018]). Plaintiff’s interpretation of this Court’s decision in Silverio (168 AD3d 608) would require finding that he was not comparatively negligent, despite the fact that he never moved for summary judgment on defendant’s affirmative defense of comparative negligence or introduced evidence to support his contention that he did not contribute to the accident (see Poon v Nisanov, 162 AD3d 804 [2d Dept 2018]; see also Wray v Galella, 172 AD3d 1446, 1448 [2d Dept 2019]).

The issue of comparative fault should have been left to a jury in determining damage”

Yes, please remember that when moving for summary judgment, an application to dismiss the affirmative defense of comparative negligence should be made to completely resolve the issue.

Damages – expert witness not necessary May 12, 2020

Zapata v Yugo J & V, LLC, 2020 NY Slip Op 02687 (3d Dept. 2020)

“Turning to the issue of damages, we reject Yugo’s contention that Supreme Court erred in not requiring expert testimony to prove plaintiffs’ damages. Generally speaking, “expert testimony is appropriate when it serves to clarify an issue that is beyond the ken of the lay juror and calls for professional or technical knowledge” (Payette v Rockefeller Univ., 220 AD2d 69, 74 [1996]; see generally De Long v County of Erie, 60 NY2d 296, 307 [1983]).

Here, there is no question that the injuries that plaintiffs’ sustained were a direct result of the fall precipitated by the deck collapse (see Madsen v Merola, 288 AD2d 520, 521 [2001]). Moreover, plaintiffs’ testimony regarding the nature and permanency of their injuries, coupled with the medical records introduced into evidence, were not beyond the competence of plaintiffs or the ordinary experience and knowledge of a lay jury so as to require expert testimony to render an appropriate damages award (see Payette v Rockefeller Univ., 220 AD2d at 74; compare Razzaque v Krakow Taxi, 238 AD2d 161, 162 [1997])”

Standing May 9, 2020

Allstate Ins. Co. v Kapeleris, 2020 NY Slip Op 02645 (2d Dept. 2020)

The Defendant, Stacey Kapeleris is one of the nicest people you could meet. The first time she met me, she told me I was not what she thought I would be. I guess I did not wear a tie that day and probably was not dressed like a typical lawyer. This is perhaps why I had trouble working in various law firms. I digressed.

But to the point, Stacey was legitimately injured in a serious car accident. For the last four years, I have had the hardest time fathoming why the Plaintiff has taken a scorch the earth approach to her. It is one thing when the adverse party is an MUA provider, a back brace peddler, a useless compound cream distributor (Voltaron gel works just as well) or a surgeon who is operating for the sake of operating. I have no sympathy to these providers and have gone the distance many times with those providers with mixed results. But, I was justified in what I did.

But this is a real life case, and to tell you I am beyond disgusted would be an understatement. Just look at the docket if you want any further insight. While this will be a non-jury trial and I would not inflame any potential jurors by commenting further, my 17 years of practice compels me to say nothing more as I am very sure this will make one more trip to Brooklyn.

The holding from this case is extremely significant as it questions what I have always understood as standing by estoppel. It also tells an injured person how to retake possession of a bill when the provider does not cooperate.

Now did I want to be the one that made this law? Nope. But as an advocate, I end up taking positions I would normally never think I would take.

Also didn’t someone once say bad facts make bad law? Here are snippets from the case.

(1) “An accident victim may assign his or her no-fault claim to a medical provider who has provided a medical service (see 11 NYCRR 65-3.11; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 764-765). The no-fault regulations provide that assignments must be made on the prescribed statutory forms (see 11 NYCRR 65-3.11[b][2]; John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d 59, 61 [App Term, 2d Dept]). The prescribed language requires the assignee (treatment provider) to certify that “[t]hey have not received any payment from or on behalf of the assignor [patient] and shall not pursue payment directly from the assignor for services provided by said assignee for injuries sustained due to the [subject] motor vehicle accident” (11 NYCRR R Appendix 13 [NYS Forms NF-3, NF-4, NF-5, NF-AOB]; see John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d at 60). In this regard, as set forth in an informal opinion issued by the Office of the General Counsel of the New York State Insurance Department, “a health care provider who has accepted a no-fault assignment of benefits from a no-fault claimant may not pursue the patient directly for health services rendered that have been denied as medically unnecessary, notwithstanding the language of the assignment, which states in the event that the no-fault carrier fails or refuses to pay for the services provided then I, the patient, agree that I will be responsible for the value of services rendered by said Doctor,'”as “[t]he use of such language is prohibited under N.Y. Comp. Codes R. & Regs. tit. 11, § 65-3.11(b)(2) (2005) (Regulation 68-C)” (Ops Gen Counsel NY Ins Dept No. 06-05-07 [May 2006]; see John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d at 60; see also A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53, 64 [“informal opinion of the General Counsel, while not binding on the courts, is entitled to deference unless irrational or unreasonable” (citation omitted)]).”

“Here, in support of her cross motion, Kapeleris submitted evidence establishing that although she had assigned her right to no-fault benefits to two medical providers, Winthrop and Nancy E. Epstein, she was billed directly by Winthrop and LI Neurosurgical for their services after the claims of those providers were denied by Allstate for lack of medical necessity (cf. Abruscato v Allstate Prop. & Cas. Ins. Co., 165 AD3d 1209, 1211). Further, Kapeleris’s evidentiary submissions showed that she remitted payment to those providers for their services in connection with the subject accident. Thus, Kapeleris’s evidentiary submissions showed that neither Winthrop nor LI Neurosurgical could certify that “[t]hey have not received any payment from or on behalf of the assignor [Kapeleris],” and that they would “not pursue payment directly from the assignor for services provided by said assignee for injuries sustained due to the [subject] motor vehicle accident.” This evidence was sufficient to demonstrate, prima facie, that the assignment to Winthrop and LI Neurosurgical, though valid when made, had been rendered ineffectual, and therefore, Kapeleris had standing to pursue her claims for no-fault benefits against Allstate for services rendered by Winthrop and LI Neurosurgical.”

“Furthermore, Kapeleris demonstrated that she did not execute an assignment of her rights to collect no-fault benefits to Nassau Anesthesia (see 11 NYCRR 65-3.11[b][1], [2]; Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App. Term, 2d Dept]). Thus, Kapeleris also demonstrated, prima facie, that she had standing to pursue her claim for no-fault benefits against Allstate for the payment she made to Nassau Anesthesia.”

The issue was whether a written revocation of assignment of benefits is necessary when an injured person pays assigned non-coverage denied billings. The answer is not found in the regulations but is a function of common law and common sense.

And the developed case law led to the conclusion found in the Respondent’s brief and within the Court’s holding: the assignment was revoked through conduct.

Affirmed with costs.