Answer rejected through subsequent motion for default January 10, 2017

American Tr. Ins. Co. v Baucage, 2017 NY Slip Op 00015 (1st Dept. 2016)

In a case of first impression, the Appellate Division held that an answer can be rejected through filing a default motion within 15-days after its receipt.  This would mean that sending a proposed clerk’s judgment when one has not been created would also be sufficient to reject an untimely answer.  Therefore, the notion that an untimely answer must be formally “rejected” has been expanded beyond anyone’s wildest dreams.

This is another example of what seems to be the benefits of haphazard practice.

How far do we take collateral estoppel? January 10, 2017

Palisade Surgery Ctr. LLC v Allstate Prop. & Cas. Ins. Co., 2016 NY Slip Op 51824(U)(App. Term 1st Dept. 2016)

“The issue of medical necessity was not fully litigated or decided in the prior first-party no-fault action, and thus the doctrine of collateral estoppel does not bar defendant-insurer from raising the medical necessity defense in this action (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]; cf. Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002])”

I am left to believe that some provider prevailed somewhere.  Perhaps the issue of medical necessity was never reached?  I cannot make out what happened here, but I am curious what procedurally occurred to cause the provider to take an appeal on this one in a court where you are out at least $1500 for a reproduced record and brief.

Rocket Docket – to the moon December 30, 2016

Matter of Global Liberty Ins. Co. v Coastal Anesthesia Servs., LLC, 2016 NY Slip Op 08964 (1st Dept. 2016)

What’s interesting about this case is that the submissions were five days late (accompanied by a showing of law office failure in the moving memorandum of law) and Respondent provider did not object to the tardy submissions.  Rather, Respondent provider sought time to put in a rebuttal.   The arbitration was held 6 months following the uploading of the evidence.

Lower arbitrator Ann Lorraine Russo decided that rocket docket preclusion was proper and Master Arbitrator Donald DeCarlo gave his “Petrofsky” stamp of approval.  Clearly, I was displeased by what I sensed as a complete perversion of the regulation.

Supreme Court without directly saying it wrote that it did not agree with the rulings of the lower arbitrator but would not disturb what amounted to a broken arbitration system on this issue.  The Appellate Division did not want to get involved.   “The decision of the Master Arbitrator in affirming the arbitration award had evidentiary support, a rational basis, and was not arbitrary and capricious (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]). The original arbitrator properly acted within her discretionary authority to refuse to entertain any late submissions proffered by petitioner (see 11 NYCRR 65-4.2[b][3]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2d Dept 2009]).”

At the end of the day, AAA and DFS needs to take a hard look (and I have sources who have said they will) at the application of 11 NYCRR 65-4.2.  This was the prototypical example of AAA just does not getting it and the courts turning a blind eye to a real problem.  I sense needed regulatory change is on the horizon.

Also remember that you (the participant) have the right to rate the performance of an arbitrator.  I just wish we could rate the performance of the master arbitrators.   But does anyone read what I wrote after I get a decision like this one?  smh.



Causation defense not substantiated in intercompany arbitration December 30, 2016

Matter of DTG Operations, Inc. v Travelers Indem. Co., 2016 NY Slip Op 08967 (1st Dept. 2016)

This looks like a case where the Petitioner was fighting an inter-company arbitration award on the basis that the injuries sustained to Respondent Assignor were not related to the accident

(1) “Accordingly, this matter involves compulsory arbitration, and the award will be upheld so long as it comports with CPLR 7511 and is not arbitrary and capricious (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of Emerald Claims Mgt. for Ullico Cas. Ins. Co. v A. Cent. Ins. Co., 121 AD3d 481, 482 [1st Dept 2014]).”

(2) “An evidentiary basis exists in the record to support a finding that respondent had demonstrated a causal relationship between the accident and the medical treatments for which it paid (American Transit Insurance Company v Acceptance Indemnity Insurance Company, 2009 NY Slip Op 33169[U] [Sup Ct, Nassau County [2009]). Respondent “responded in writing to the causation argument” (emphasis omitted), stating that the applicant passenger, who was injured while riding in an Access-A-Ride vehicle insured by respondent, was disabled prior to this loss, that the loss worsened any prior condition, that it takes a disabled person much longer to recover from said injuries, and that a disabled person therefore requires more treatment.

As can be seen here, the exacerbation argument won the day in this case.  As we saw in Liberty v. Global, the burden was on DTG to present evidence that the injury was not related or that the accident made the condition worse.  Failing this showing, the award could not be vacated.


Why are cariers filing DJ’s against the Anikeyev providers? December 29, 2016

I am at a loss when I see  a DJ action against this group of medical providers.  In one published case, this particular medical provider was found after a full  briefing of papers to be ineligible to collect no-fault benefits.  See e.g. Nationwide v. Acuhealth Acupuncture, P.C.  (4874/15).  The case is going to the Appellate Division and I would be surprised if the Second Department offered this group of providers any relief.

In  State Farm Mut. Auto. Ins. Co. v. Anikeyeva, 130 AD3d 1007, 1007 (2d Dept. 2015), the merits were implicated due to the failure of defendant to respond to discovery after numerous orders.

Wouldn’t it follow that collateral estoppel would prevent the Anikeyeva facility from re-litigating the same issue it lost on the merits?  Parenthetically, I know Countrywide lost various arbitrations involving this issue – but arbitrators are not necessarily bound by collateral estoppel.

Now, unless my understanding of collateral estoppel is incorrect,