This time Country-Wide gets the Appellate Division to reverse AAA February 25, 2017

Country-Wide Ins. Co. v Radiology of Westchester, P.C., 2017 NY Slip Op 01461 (1st Dept. 2017)

“The master arbitrator’s award was arbitrary because it irrationally ignored petitioner’s uncontroverted evidence establishing that the assignor failed to appear at the three scheduled examinations under oath (cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U] [App Term, 1st Dept 2015]).”

Again, the blame on this goes to the master arbitration system that rubber stamps the awards of the lower arbitrators.  I never read Petrofsky to require a master arbitrator to ignore evidence that proves a factual proposition or a well known legal principle.  These master arbitration awards (and I master arbitrate a lot of cases) usually affirm arbitrator awards because they believe that most review is out of their hands.  Read this case, Hillside, Professional Chiro and understand that legal challenges to lower arbitration awards are fair game. Factual challenges when there are no facts to support a key proposition of fact are fair game for review, but a closer call for affirmance than legal challenges.  There are other cases that are escaping me – but those involve MVAIC.

As an aside,  I have 7 masters on IME no shows (same date of loss and assignor/assignee) where the lower arbitrator misconstrued an IME letter and affidavit.  The error is as clear as the day is long.  That said, I am not going to blame the lower arbitrator because there was a lot going on in the file and he probably missed it.  Mistakes happen and that is why we have appellate courts and a master arbitration tribunal.  I have a feeling the master is going to affirm because of “Petrofsky” and it will take Supreme Court  to vacate the awards.


A true prima facie showing on summary judgment motion February 25, 2017

Easy Care Acupuncture, P.C. v ELRAC, Inc., 2017 NY Slip Op 50234(U)(App. Term 1st Dept. 2017)

(1) “Plaintiff-provider established prima facie that its no-fault claims in the amount of $2,958.13 were overdue, since they were not “denied or paid” within the prescribed 30—day period (see Viviane Etienne Med. Care, P.C. v Country—Wide Ins. Co., 25 NY3d 498, 507 [2015]).”

(2)  “Nor may defendant assert the defense of excessive fees for the acupuncture services rendered in 2010, inasmuch as it failed to timely and properly mail the denial of claim form to plaintiff assignee”

(3) “In addition, the conclusory assertions in the adjuster’s affidavit were insufficient to raise a triable issue as to whether certain services provided were outside the scope of acupuncture treatment”

Gary Tsirelman: the expert in acupuncture.  What else do you want me to say here?  Elrac got badly shut out on this appeal.

Employee of Defendant is allowed to remain in court room February 23, 2017

Perry v Kone, Inc., 2017 NY Slip Op 01395

“However, a new trial is required due to the Supreme Court’s error in excluding a witness from the courtroom and in prohibiting the witness from communicating with defense counsel during the trial as to any matter. The witness at issue was an employee of the defendant and the representative it had designated to assist in the defense of this action. Under these circumstances, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial (see Yellow Book of N.Y., L.P. v Cataldo, 81 AD3d 638, 639; American Print. Converters v JES Label & Tape, 103 AD2d 787; Carlisle v County of Nassau, 64 AD2d 15, 18-19). Further, the court’s decision to prohibit defense counsel from communicating at all with the witness, who was knowledgable about the technical aspects of elevator mechanics and maintenance that were the subject of the testimony of the plaintiff’s expert, compromised the defendant’s ability to assist in and present its defense (see People v Santana, 80 NY2d 92, 99; Carlisle v County of Nassau, 64 AD2d at 20). Accordingly, a new trial should have been granted in the interest of justice (see CPLR [*3]4404[a]).”

Must the claim rep be relegated to the benches in Civil Kings?  I have seen this line of cases previously and it makes sense.

The expert February 23, 2017

Kohler v Barker, 2017 NY Slip Op 01344 (2d Dept. 2017)

“The admissibility and scope of expert testimony is a determination within the discretion of the trial court (see Price v New York City Hous. Auth., 92 NY2d 553, 558; Doviak v Finkelstein & Partners, LLP, 137 AD3d 843, 847; Galasso v 400 Exec. Blvd., LLC, 101 AD3d 677, 678). Generally, expert opinion is proper when it would help clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror (see De Long v County of Erie, 60 NY2d 296, 307; Matter of Islam v Lee, 115 AD3d 952, 953). Here, the Supreme Court did not improvidently exercise its discretion in admitting the testimony of the defendants’ expert. Contrary to the plaintiff’s contention, the testimony of the defendants’ expert was based on facts in the record and his own analysis, not speculation”

This is another expert witness case.  Worth seeing how far you can push the envelope with the hired witness.

Business records and copies February 23, 2017

76-82 St. Marks, LLC v Gluck, 2017 NY Slip Op 01329 (2017)

(1) “Moreover, the Supreme Court properly determined that the proffered copy of the guaranty was inadmissible as secondary evidence of the terms of the guaranty or pursuant to CPLR 4539(a). Under an exception to the best evidence rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith”.  (Compare this to 4539[b] – note the differences in foundations)

(2) “The plaintiff’s principal was not present when the original guaranty was executed, and thus could not testify as to whether the original guaranty was similarly missing a portion of paragraph 4, while Gluck testified that the guaranty she executed contained complete paragraphs. Further, the copy was not satisfactorily identified as a copy of the guaranty so as to be admissible as a reproduction pursuant to CPLR 4539(a)”

(3) “Furthermore, Gluck is correct that the plaintiff failed to make a prima facie case regarding its damages, since the summary chart of charges and payments made under the lease was prepared solely in anticipation of litigation and should not have been received in evidence, and the plaintiff failed to provide any underlying documents to establish the proper charges and payments made”

Just amazing how another Plaintiff came to court unprepared to put documents into evidence.