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Cashing in on old settlements June 14, 2019

Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918(U)(App. Term 2d Dept. 2019)

“This action by a provider to recover assigned first-party no-fault benefits was settled in open court on August 2, 2007. Defendant did not pay the settlement amount, and a judgment was subsequently entered on June 21, 2016, pursuant to CPLR 5003-a. Plaintiff appeals from so much of an order of the Civil Court entered May 12, 2017 as granted the branch of a cross motion by defendant seeking to stay the accrual of no-fault statutory interest “between date of settlement and date of judgment” by providing that such interest would be tolled until August 23, 2016, the date of the filing of a motion by plaintiff to recalculate the interest. We deem plaintiff’s notice of appeal from that part of the order to be a premature notice of appeal, on the ground of inadequacy, from the subsequently entered judgment (see CPLR 5520 [c]).

Plaintiff correctly argues that the Civil Court erred in staying interest from the date of the settlement of the action to August 23, 2016. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]). Therefore, the Civil Court erred in tolling the accrual of interest (see Craniofacial Pain Mgt., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]).”

This fits within the line of cases that the carrier, if they want to reduce interest, must enter a judgment and work off that judgment. This was not done in this case.

PPO based discovery June 14, 2019

North Val. Med., P.C. v Allstate Ins. Co., 2019 NY Slip Op 50904(U)(2d Dept. 2019)

This one was interesting.

(1) “A review of the record indicates that the Civil Court properly denied the branch of defendant’s motion seeking, pursuant to CPLR 3211, to dismiss the complaint. The affidavits and documents annexed to defendant’s moving papers failed to establish that the corporate plaintiff was a party to the PPO contract, dated October 1998, which states that it is between Emerth L. Coburn, M.D., as an “individual practitioner,” and MultiPlan.”

(2) ” Here, according to defendant, Dr. Coburn explicitly requested Multiplan to include within the scope of his individual PPO contract with Multiplan all bills submitted to [*2]Multiplan bearing plaintiff’s name and taxpayer identification number. Consequently, the Civil Court improvidently exercised its discretion in denying defendant’s alternate relief of compelling an EBT of Dr. Coburn, since defendant is seeking material and necessary evidence to support its defense, as defendant paid plaintiff’s claims in accordance with the provisions of the PPO contract. “

The other issue in the PPO chain is between the carrier and the third-party intermediary. Was that contract presented? We just have multiplan and the doctor individually.

Note of Issue: Pitfalls June 11, 2019

Williams v Laura Livery Corp., 2019 NY Slip Op 04664 (1st Dept. 2019)

“Once plaintiff filed the notice of issue and certificate of readiness certifying to the court that all discovery was complete without reserving his rights or preserving objections, he waived his right to seek preclusion (see Rivera-Irby v City of New York, 71 AD3d 482 [1st Dept 2010]).”

Lesson to the wise. Without a preclusion order, the surprise affiant can appear.

Procedural irregularity June 11, 2019

Wells Fargo Bank, N.A. v Merino, 2019 NY Slip Op 04655 (1st Dept. 2019)

“While defendant, who was initially pro se, raised the defense of plaintiff’s noncompliance with the strict requirements of RPAPL 1304 90-day pre-foreclosure notices in her answer, she did not raise it in her opposition to plaintiff’s motion for summary judgment, which was subsequently granted. This does not preclude her, however, from raising plaintiff’s noncompliance prior to entry of judgment of foreclosure and sale (Emigrant, 142 AD3d at 755-756).

Plaintiff failed to establish strict compliance with RPAPL 1304, a condition precedent to the commencement of a foreclosure action (see HSBC Bank USA v Rice, 155 AD3d 443 [1st Dept 2017]). The affidavits submitted by plaintiff failed to demonstrate a familiarity with plaintiff’s mailing practices and procedures (HSBC Bank, 155 AD3d at 444), and they did not suffice as affidavits of service.”

This one is interesting. In one instance, Plaintiff received summary judgment. And after obtaining summary judgment, the defendant move to dismiss based upon violation of RPAPL 1304. Head scratching

Causation June 8, 2019

Streety v Toure, 2019 NY Slip Op 04487 (1st Dept. 2019)

(1) “The report of defendants’ expert emergency medicine physician is sufficient to establish their prima facie burden on the issue of causation insofar as the physician opined that the record of plaintiff’s examination in the emergency room showed findings inconsistent with his claimed injuries.”

(2) ” In opposition, plaintiff raised an issue of fact as to serious injury of a permanent nature through the submission of his pertinent medical records documenting complaints of pain and treatment to the affected body parts within days of the accident (see Perl v Meher, 18 NY3d 208, 217-218 [2011]) as well as the affirmed report of his treating orthopedic surgeon, who reviewed plaintiff’s medical history, his own treatment of plaintiff, and plaintiff’s MRIs, and who recounted his direct observations of plaintiff’s injuries during surgery and opined that they were causally related to the accident”

So the surgeon wrote an affidavit that accounted for the history, the operative report and opined visually a causally related injury consistent with an MVA. That takes the case to trial.