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Court hints at its view towards renewal when discovery is outstanding January 17, 2019

Corvino v Schineller, 2019 NY Slip Op 00259 (2d Dept. 2019)

“The defendant’s contention that the plaintiff’s motion should have been denied without leave to renew is not properly before this Court. However, we note our concern that, where a motion for summary judgment has been made prematurely, granting leave to renew upon completion of discovery may only encourage the making of premature motions, resulting in successive motion practice and, in turn, successive appeals, thus increasing the burdens on this Court. Motion courts should therefore exercise their discretion with care in deciding whether to give advance permission to a movant to make a successive motion for summary judgment. “

The Scheinkman Court has been sending out signals that he wants the Second Department to run similar to how Westchester Supreme Court ran when Justice Schneinkman was the administrative judge at that court. We saw an admonition to the trial judges in a criminal case involving involuntariness of pleas. Also, the Court warned us that extensions of time to perfect briefs would not be ripe for the asking.

Personally, they should break up the Second Department into a new Fifth Department for Long Island and Mid-Hudson Valley matters. The Court just hears too many cases, and it is not fair to the Judges or the attorneys to wait 2 years for argument/submission or 3 months following same for an opinion.

No need for an affidavit January 17, 2019

Watabe v Ci:Labo USA, Inc., 2019 NY Slip Op 00354 (1st Dept. 2019)

” The fact that Sugioka and Otani, as well the other plaintiffs, testified at a deposition with the assistance of a Japanese translator does not preclude them from drafting their affidavits in English, and, accordingly, their affidavits did not need to be accompanied by an affidavit by a Japanese translator. “

Always scratched my heard when this came up.

Bad Faith January 17, 2019

We inch closer and closer to becoming a bad faith state

D.K. Prop., Inc. v National Union Fire Ins. Co. of Pittsburgh, Pa., 2019 NY Slip Op 00347 (1st Dept. 2018)

(1) ” The complaint alleges that rather than pay the claim, defendant has made unreasonable and increasingly burdensome information demands throughout the three year period since the property damage occurred “

(2) “At issue is whether, at the pleading stage, a claim for consequential damages arising from defendant’s processing of plaintiff’s insurance claim requires a detailed, factual description or explanation for why such damages, which do not directly flow from the breach, are also recoverable. We find that the motion court erred in dismissing the consequential damages claim, because plaintiff fulfilled its pleading requirement by specifying the types of consequential damages claimed and alleging that such damages were reasonably contemplated by the parties prior to contracting. “

(3) ” A plaintiff may sue for consequential damages resulting from an insurer’s failure to provide coverage if such damages (“risks”) were foreseen or should have been foreseen when the contract was made (Bi-Economy Mkt, Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 192 [2008]). Although proof of such consequential damages will ultimately rest on what liability the insurer is found to have “assumed consciously,” or from the plaintiff’s point of view, have warranted the plaintiff to reasonably suppose the insurer assumed when the insurance contract was made, a determination of whether such damages were, in fact, forseeable should not be decided on a motion to dismiss and must await a fully developed record (see Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d 200, 203 [2008]; see also Bi-Economy at 192). In other words, the inquiry is not whether plaintiff will be able to establish its claim, but whether plaintiff has stated a claim.”

(4) ” Here, plaintiff’s allegations meet the pleading requirements of the CPLR with respect to consequential damages, whether in connection with the first cause of action or the second cause of action for breach of the covenant of good faith and fair dealing in the context of an insurance contract (id.). Contrary to defendant’s claim, there is no heightened pleading standard requiring plaintiff to explain or describe how and why the “specific” categories of consequential damages alleged were reasonable and forseeable at the time of contract. There is no heightened pleading requirement for consequential damages (Panasia Estates Inc. v Hudson Ins. Co., 68 AD3d 530, 530 [1st Dept 2009], affd 10 NY3d 200 [2008], citing Bi-Economy 10 NY3d at 192). Furthermore, an insured’s obligation to “take all reasonable steps to protect the covered property from further damage by a covered cause of loss” supports plaintiff’s allegation that some or all the alleged damages were forseeable (Benjamin Shapiro Realty Co. v Agricultural Ins. Co., 287 AD2d 389, 389-390 [1st Dept 2001]). “

The terrain is tightening a bit.

“Out of scope, out of mind” January 17, 2019

Daniele v Pain Mgt. Ctr. of Long Is., 2019 NY Slip Op 00093 (2d Dept. 2019)

” The Supreme Court also should not have allowed the plaintiff’s experts, Jason Brajer and Paul Edelson, to testify as expert witnesses in emergency medicine. “[W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Mustello v Berg, 44 AD3d 1018, 1019; see Behar v Coren, 21 AD3d 1045, 1046-1047). Whether a particular witness is qualified to testify as an expert is ordinarily a discretionary determination (see de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 517), which will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion (see id. at 517-518). Brajer was board-certified in anesthesiology and pain management. He did not testify that he had training in emergency medicine, and did not adequately explain how he was familiar with the standard of care in emergency medicine based upon his prior experience of being called to the emergency room to prepare patients for surgery, or evaluating urgent back pain (see Galluccio v Grossman, 161 AD3d 1049, 1052; cf. Ocasio-Gary v Lawrence Hosp., 69 AD3d 403, 405). Edelson, a pediatrician, had minimal experience in emergency medicine. More importantly, that experience, which consisted of moonlighting at a hospital for five hours per week in the late 1970s and early 1980s, was simply too remote in time to qualify him to testify as an expert in emergency medicine as of September 2010, the time of the treatment at issue in this case. Edelson otherwise failed to demonstrate that he possessed the specialized knowledge, training, or education that would have qualified him as an expert in this area “

April 2019 (add 18 months for no-fault): a new fee schedule January 15, 2019

The text of the amendments.

Some good things have come from the new Workers Compensation Fee Schedule Changes.

First, chiropractors cannot leave their fee schedule. Perhaps nothing was more cumbersome than seeing creative chiropractic billing.

Second, ROM/MTT/PFT are dead. I guess the computerized ROM was part of the initial comprehensive visit after all. Bad joke.

Third, Manipulation Under Anesthesia is gone. I wish this billing machine went away sooner and would be exempt from the 18 month regulator holiday.

Fourth, the pricing of EMG/NCVs are about 50% of what they are currently. More importantly, the surface EMGs and every type of name for them (CPT/neurometer/PFNCS) are gone. Good to see these billing magnets de-polarized.

Fifth, various physical medicine modality providers are getting pay raises. While this will adversely effect paid premium dollar, it makes sense if only because major medical compensates at or near $100 per diem for physical therapy. A good physical therapy facility is worth every dollar of this pay raise. What is problematic here is that no-fault does not contain any co-pays or “real” deductibles, which causes product over-utilization. This in turn causes the proliferation of “heat and stim” clinics. The deletion of the 180-day/12 session rule from proposed Ground Rule 2 will only exacerbate the over utilization of resources that are endemic in the no-fault system.

Sixth, the 8 unit rule (and associated per diem unit rules) is distinct for each provider from what I read. Assuming each unit represents 15 minutes of care, I seriously challenge someone to tell me that an EIP really received 16 units of treatment per diem. The winners here will be the providers, the lawyers representing the providers, the defense counsel who will perform the time-based treatment EUO per patient, the IME doctors who will be needed to cut off treatment earlier and the RICO firms who will use mail fraud and health care fraud as the predicate acts in support of the substantive and inchoate racketeering allegations.

Seventh, I believe there are myriad other fee-coding changes, which I have not studied nor held side-by-side to the current fee schedule.

My biggest concern here is that allowing a pay raise without resource allotment (i.e treatment guidelines) will probably cause average claim pay outs to exceed $20k assuming current treatment trends continue. The comments from WCB place this potential inferno into DFS’ lap.

The 18 month holiday regulation: “any such increases shall not be effective for no-fault until eighteen months after the effective date of the increases established by the chair.” 11 NYCRR § 68.1

Please note that 68.1(b) expired, and DFS may be working on new implementing regulations. Sta tuned.