Significant limitaiton prong of Ins Law 5102(d) June 18, 2018

Schaubroeck v Moriarty, 2018 NY Slip Op 04453 (4th Dept. 2018)

It is an obsession of mine.  When someone gets into an accident where the threshold applies, has made a complete recovery and can still recover under a non 90-180 basis.  I observed intermittently on here (this is a no fault and not a PI blog) the decoupling years ago of the permanent consequential and significant limitation prong of Ins Law 5102(d).  It is an issue that we do not see too much but it is interesting when we see it.

(1)  The report of defendant’s expert physician “does not establish that plaintiff’s condition is the result of a preexisting degenerative [condition] inasmuch as it fails to account for evidence that plaintiff had no complaints of pain prior to the accident’ ” (id. at 1842; see Thomas v Huh, 115 AD3d 1225, 1226 [4th Dept 2014]). Inasmuch as defendant failed to meet his initial burden on the motion with respect to causation, there is no need to consider the sufficiency of plaintiff’s opposing papers on that issue (see Sobieraj v Summers, 137 AD3d 1738, 1739 [4th Dept 2016]). (First observation on causation)

(2) “Contrary to defendant’s further contention, we conclude that the court properly denied that part of the motion with respect to the significant limitation of use category. Even assuming, arguendo, that defendant made a “prima facie showing that plaintiff’s alleged injuries did not satisfy [the] serious injury threshold” with respect to that category (Pommells v Perez, 4 NY3d 566, 574 [2005]), we conclude that plaintiff’s submissions in opposition to the motion raised an issue of fact. Those submissions included the affirmation of plaintiff’s treating physician, who, after reviewing plaintiff’s medical records and imaging studies, opined within a reasonable degree of medical certainty that plaintiff sustained a folded flap tear at the junction of the mid-body and posterior horn of the meniscus of his right knee, and lateral and medial meniscus tears of both knees that required surgery and were causally related to the accident. He further opined that, consistent with what he observed on the MRI and his observations during plaintiff’s surgery, the meniscus tears limited plaintiff’s ability to walk, sit for long periods, turn, twist, drive for long periods, climb stairs, and walk on uneven surfaces (see Lopez v Senatore, 65 NY2d 1017, 1020 [1985]; LoGrasso v City of Tonawanda, 87 AD3d 1390, 1391 [4th Dept 2011]).”

EUO no-show case/objective reasons not necessary/ what’s next? June 15, 2018

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2018 NY Slip Op 50864(U)(App. Term 2d Dept. 2018)

“Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [*2][2006]). Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff has not provided any basis to disturb the Civil Court’s order.”

The unanswered question is assuming that the provider sets forth valid reasons for not attending the EUO and a disclaimer is issued, what is the remedy?  Does the insurance carrier always prevail?  Or, is the disclaimer without prejudice to compelling the entity to appear for an EUO?  I think the new Fourth Department case of Progressive v. Elite and the older Second Department case of Park v. Long Island call into question the remedy for this discreet type of breach.  But that is a discussion for another day.


New trial ordered due to physician unavailability June 11, 2018

Normandin v Bell, 2018 NY Slip Op 04053 (3d Dept. 2018)

“When the expert eventually arrived in the late morning of December 1, 2016, he did not have his original file with him. (In the Third Department, the local rules require the treating doctor to have the original file with them.)

According to the expert, he left the original file in his hotel and it was his belief that it was not necessary for him to have it in order to testify. Defendant objected [*2]to having the expert testify until the original file was with him. Supreme Court directed the expert to have his office make arrangements to immediately bring the original file to the courthouse with the hope that it would arrive in the afternoon. According to the court, the expert could then testify that afternoon and finish the next day, on Friday, December 2, 2016. Plaintiffs’ counsel, however, advised the court that the expert had scheduled appointments with patients on December 2, 2016 and was unavailable to testify that day or on December 5, 2016. The next available day for the expert was Tuesday, December 6, 2016. The court, however, instructed the expert to reschedule his appointments. The expert testified in the afternoon of December 1, 2016, but by the completion of direct examination by plaintiffs’ counsel, the original file had not arrived. Defendant thereafter orally moved to strike the expert’s testimony. The court denied the oral application as premature.

On December 2, 2016, plaintiffs’ expert did not appear. Defendant renewed his motion to strike the expert’s testimony and plaintiffs moved for, among other things, a continuance. Supreme Court, among other things, denied plaintiffs’ motion for a continuance and granted defendant’s motion to strike. After plaintiffs rested, defendant moved to dismiss the complaint based upon plaintiffs’ failure to prove a prima facie case due to the absence of expert testimony. Supreme Court granted the motion and a judgment was subsequently entered thereon. Plaintiffs now appeal. We reverse.

Whether to grant a continuance rests in the sound discretion of the court (see Matter of Anthony M., 63 NY2d 270, 283 [1984]; Stone v Hidle, 266 AD2d 705, 706 [1999]) and, absent an abuse of such discretion, the court’s determination will not be disturbed (see Gutin-Nedo v Marshall, Cheung & Diamond, 301 AD2d 728, 729 [2003]; Gombas v Roberts, 104 AD2d 521, 522 [1984]). “[I]t is an abuse of the court’s discretion to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from the failure to exercise due diligence” (Cirino v St. John, 146 AD2d 912, 913 [1989] [internal quotation marks and citation omitted]; see Black v St. Luke’s Cornwall Hosp., 112 AD3d 661, 661 [2013]; Brusco v Davis-Klages, 302 AD2d 674, 674 [2003]).

We conclude that plaintiffs’ motion for a continuance should have been granted (see Stevens v Auburn Mem. Hosp., 286 AD2d 965, 966 [2001]; Cirino v St. John, 146 AD2d at 914). The record does not support Supreme Court’s finding that the failure of plaintiffs’ expert to appear and complete his testimony on December 2, 2016 stemmed from a lack of due diligence by plaintiffs (see Brusco v Davis-Klages, 302 AD2d at 674-675; compare McKenna v Connors, 36 AD3d 1062, 1064 [2007], lv dismissed and denied 8 NY3d 969 [2007]). Furthermore, the expert’s testimony was material, plaintiffs requested only a brief adjournment, the court had allotted two weeks for trial and the continuance request was not made for the purpose of delay. Accordingly, Supreme Court abused its discretion in denying plaintiffs’ request for a continuance (see Zysk v Bley, 24 AD3d 757, 758 [2005]; Mura v Gordon, 252 AD2d 485, 485 [1998]; Hoffner v County of Putnam, 167 AD2d 755, 756 [1990]; Gombas v Roberts, 104 AD2d at 522).

In the real world of law, this type of circumstance always calls for a re-trial.  I would say that even in NF provided you get the availability dates of the doctor, this will work also.

120-day rule crumbles June 11, 2018

Matter of Progressive Cas. Ins. Co. (Elite Med. Supply of N.Y., LLC), 2018 NY Slip Op 04122 (4th Dept. 2018)

“In his awards, the master arbitrator found that the arbitrator had misapplied the 120-day rule, reasoning that, pursuant to that rule, a claimant who responds within the requisite 120-day period with a “reasonable justification” is permitted to have that objection decided by the arbitrator and, if overruled by the arbitrator, is to be afforded the opportunity to produce the requested information and allow the insurer to base its decision on such information (11 NYCRR 65-3.8 [b] [3]). Contrary to petitioners’ contention, the master arbitrator did not impermissibly perform a de novo review of the evidence. Rather, the master arbitrator vacated the arbitrator’s awards based on “an alleged error of a rule of substantive law” (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828, 829 [2d Dept 2017] [internal quotation marks omitted]). Thus, we conclude that the court’s decision to uphold the master arbitrator’s awards in this case was rational (cf. id.).”

This case highlights how important it is to respond and object to verification demands.  The worst thing that can happen, should an objection be lodged, is that the denial of the claim is without prejudice.  I would sense in certain circumstances an objection to an attendance at an EUO landing in a denial could also be a dismissal without prejudice.  The 120-day rule has been neutered and it may have ramifications far beyond 65-3.5 and 65-3.6.

Why “contemporaneous” medical inquiry should not be the loadstar of medical necessity determinations June 8, 2018

Hayes v Gaceur, 2018 NY Slip Op 04080 (1st Dept. 2018)

“In opposition, however, plaintiff raised an issue of fact as to her claimed cervical spine, shoulder and left knee injuries through the report of her treating orthopedic surgeon. The physician examined plaintiff the day after the accident and on several occasions thereafter. He found limitations in range of motion of her cervical spine the day after the accident and on recent examination; he examined plaintiff’s shoulders and left knee within a month after the accident and found limitations in range of motion at the initial examination and recently (see Perl v Meher, 18 NY3d 208, 218 [2011] [“Injuries can become significantly more or less severe as time passes”]”