Unwelcome visitors at an IME February 16, 2017

Henderson v Ross, 2017 NY Slip Op 01186 (2d Dept. 2016)

For some reason, American Transit (AT) has this inchoate fear of visitors at IMEs that their doctors perform.  This fear has materialized into rampant litigation on the issue of whether a Plaintiff’s attorney or paralegal/support staff that is affiliated with a Plaintiff’s attorney is allowed to to attend an IME.  I would say that in light of the Dr. Katz and Dr. Israel events of 3-4 years ago (and there is a myriad of interpretations of what really happened that I am not going to opine upon on this blog), one would think that more transparency is better than less.

How many times has a Claimant stated the “IME was 3 minutes”?   Do I believe that Claimant  Without proof, who is to say.  I know many really awesome IME practitioners who I have referred friends to treat with because their integrity and acumen is second to none.  I also know a few IME practitioners that downright scare me and I cringe when I see them in Court (on a PIP or a BI case).

AT disagrees in transparency and the First Department in a prior post on here agreed with AT.  The Second Department has now said otherwise, and I think the Second Department got it right.

“A plaintiff “is entitled to be examined in the presence of [his or] her attorney or other legal representative, as well as an interpreter, if necessary, so long as they do not interfere with the conduct of the examination[ ]” (Ponce v Health Ins. Plan of Greater N.Y., 100 AD2d 963, 964; see Guerra v McBean, 127 AD3d 462, 462; A.W. v County of Oneida, 34 AD3d 1236, 1237-1238; see also Bermejo v New York City Health & Hosps. Corp., 135 AD3d 116, 143). Here, the defendant failed to meet his burden of establishing that the plaintiffs’ representative would improperly interfere with the conduct of the injured plaintiff’s physical examination (see Guerra v McBean, 127 AD3d [*2]at 462; Flores v Vescera, 105 AD3d 1340, 1340-1341; A.W. v County of Oneida, 34 AD3d at 1238; see also Lamendola v Slocum, 148 AD2d 781, 781-782; cf. Kattaria v Rosado, _____ AD3d _____, 2017 NY Slip Op 00091 [1st Dept 2017]). Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for a protective order precluding any non-attorney from accompanying the injured plaintiff in the examination room during his physical examination.”

Expect this to go to the Court of Appeals.

A DJ to nowhere February 15, 2017

Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 2017 NY Slip Op 00916 (1st Dept. 2016)

“Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage (see 11 NYCRR 65-1.1; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), plaintiff failed to supply sufficient evidence to enable the court to determine whether the notices it had served on the injury claimants for EUOs were subject to the timeliness requirements of 11 NYCRR 65-3.5(b) and 11 NYCRR 65-3.6(b) (see Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]) and, if so, whether the notices had been served in conformity with those requirements (see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). Specifically, plaintiff failed to provide copies of any completed verification forms it may have received from any of the health service provider defendants or any other evidence reflective of the dates on which plaintiff had received any such verification forms, or otherwise assert that it never received such forms.

The Court has delimited the proof necessary to demonstrate that a no show is timely, relative to the receipt of billing.  Manoo involved verification of treatment forms that were dated after the EUO letters, showing timeliness on its fact.  An affidavit from a claims representative expressing when billing per provider or per claim was received would be the “other evidence reflective of the dates on which plaintiff had received any such verification forms”.  The Court held in this manner in AT v. Vance and AT v. Longevity.

In light of the caselaw that has been established since 2015, this perfection of this appeal seemed strange as the result was preordained, and there does not appear anything in the face of this opinion that would cause a shift in the law.  Plus with Manoo at the Court of Appeals, the vitality of Unitrin may or may not be dead by years end.


Limits of cross-examination February 13, 2017

People v Jackson (Miriam), 2017 NY Slip Op 50133(U)(App. Term 2d Dept. 2017)

“A trial court “has broad discretion to limit cross-examination when questions are repetitive, irrelevant or only marginally relevant, concern collateral issues, or threaten to mislead the jury” (People v Rivera, 98 AD3d 529, 529 [2012]; see Delaware v Van Arsdall, 475 US 673, 679 [1986]; People v Corby, 6 NY3d 231, 234-235 [2005]; People v Arroyo, 131 AD3d 1257, 1258 [2015]; People v Pena, 113 AD3d 701, 702 [2014]; People v Stevens, 45 AD3d 610, 611 [2007]). However, a court’s discretion in making such rulings “is circumscribed by the rules of evidence and the defendant’s constitutional right to present a defense”

This case gives you a perspective on the appropriate scope of

The wrong way to evict a tenant February 2, 2017

People v Grohoske, 2017 NY Slip Op 00617 (1st Dept. 2017)

I get it: the rent is too damn high.  That does not mean you can engage in self-help.  The opinion started with the line: “It also provides a lesson to those who believe that the summary proceedings available under the Real Property Actions and Proceedings Law to lawfully evict tenants are not summary enough.”

“[C]alvin replied quickly, advising Lawson that his failure to pay the rent resulted in a termination of the agreement. He advised Lawson to be out of the apartment by the end of October and said that he was going to submit a wage garnishment for Lawson’s unpaid rent. Calvin said he arranged with another person to rent the room as of the end of October.

According to Calvin, to clean and prepare the apartment for the new tenant’s occupancy at the end of October, Calvin and his mother (both then in Texas) decided to come to New York. On October 29, 2013, the two of them flew from Texas to New York. Upon arrival, they purchased a new door lock at a Home Depot for the room that he had rented to Lawson, with the hope of changing the lock while Lawson was out of the apartment.

At about 10:30 p.m. that day, Calvin and his mother, defendant Diann Grohoske (Diann), arrived at the apartment. Lawson testified that he was in bed, naked, with the lights off, watching Downton Abbey on his computer, when Calvin charged into the room, straddled Lawson on the bed and began punching him in the face; there was also testimony that Calvin “kneed” Lawson in the face. Lawson testified that Diann walked into the room carrying a gun; Diann denied having a gun at any time. According to Lawson, Diann instructed Lawson to get dressed and then to get down on the floor on his knees where Calvin applied duct tape to his wrists so that they would be bound behind his back like handcuffs. Duct tape was also placed around his chest so that his arms were held to his side. Calvin secured Lawson’s cat Pookie in a cardboard box, securing it with duct tape. Lawson said that they also took his cell phone and wallet, which assertion Calvin and Diann denied. Lawson protested to these events by stating to Calvin and Diann that he had “squatter’s rights” to the room, and that Calvin had to proceed to landlord-tenant court to obtain an order of eviction before throwing him out. To this, Lawson asserts that Calvin responded, “That’s not how we do it in Texas.”

Calvin and Diann led Lawson downstairs. He was placed in the front passenger seat of Calvin’s rental car, with Diann sitting behind him and Calvin in the driver’s seat. Calvin put the duct-taped box containing the cat into the trunk of the car. According to Calvin, he had offered to drop Lawson at a shelter, but Lawson refused because a shelter would not be able to accommodate both him and Pookie the cat. According to Lawson, they proceeded onto the New Jersey Turnpike with Calvin driving and Diann sitting behind him with a gun to the back of his head. At about 12:50 a.m. the car left the New Jersey Turnpike and traveled across the Betsy Ross Bridge into Philadelphia. They eventually arrived at a deserted area in Philadelphia, where Calvin pulled over, and together Calvin and Diann forced Lawson out of the car and threw the cat box out on the street from the trunk. According to Lawson, he was shoved against a fence, and Diann cut some of the duct tape off him and told him, “[I]f you ever come back you are dead.” Calvin and his mother then drove away.

Lawson was able to free himself of the remaining duct tape and began to open the cat box. Apparently Pookie the cat was frightened by the experience of being boxed in an automobile trunk, because as Lawson tried to open the box, the cat jumped out and ran off, never to be seen again.

Ultimately, Lawson located a police station, and reported the unusual events. It was then about 1:20 a.m. The right side of Lawson’s face was red and the right front of his glasses were broken and the right lens of his glasses had popped out. A residue of duct tape was found in the area where he had been dropped off.”

Both landlord and mom were convicted of kidnapping and robbery and were sentenced to very significant prison sentences.

The lesson – Do not rent property in New York City and expect to be able to evict a non-paying tenant for a lengthy period of time.

Quirky Workers Compensation case February 2, 2017

Flatbush Chiropractic, P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50105(U)(App. Term 2d Dept. 2017)

“A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]) and must “contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). We note that a claim for workers’ compensation benefits must be filed by the injured worker on a particular Board form within two years after the date of the accident (Workers’ Compensation Law § 28) and may not be assigned (Workers’ Compensation Law § 33). Plaintiff did not demonstrate that its assignor had made a proper application for workers’ compensation benefits (see A. B. Med. Servs., PLLC v American Tr. Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).”

Assume a decision comes out from the court stating that the EIP must make a prompt application to the board, the EIP does this and has the claim is denied due to failing to comply with WCL 28.  Would no-fault then be on the hook since there is no WC available, albeit due to the actions of the Assignor?  See 11 NYCRR 65-3.12(a)(9)(“Pursuant to section 5102(b)(2) of the Insurance Law, when the applicant is entitled to workers’ compensation benefits due to the same accident, the workers’ compensation carrier shall be the sole source of reimbursement for medical expenses.”)