Use and Operation June 8, 2018

Lazzari v Qualcon Constr., LLC, 2018 NY Slip Op 04082 (1st Dept. 2018)

I am a use and operation fan.  It is the one issue that any practitioner who is involved in this area of law always has to question.  The gray areas are huge.  This case – probably a fact pattern few who practice on this field will deal with – just another example.

And what makes this even more remarkable is that Plaintiff will want use and operation not to be found for all purposes in this case because he would have “use and operation” for his own vehicle and will collect no-fault benefits regardless of the outcome in this matter.  The usual fact pattern involves a pedestrian who makes contract with a vehicle or an occurrence that is proximately caused by the vehicle.

“Initially, we agree with defendants that the serious injury threshold applies because the action is between “covered persons” (Insurance Law §§ 5104[a], 5102[j]). Defendants’ excavator does not fall under the “self-propelled caterpillar or crawler-type equipment while being operated on the contract site” exclusion to the term “motor vehicle” (Vehicle and Traffic Law § 311[2]). While it is a “self-propelled caterpillar or crawler-type equipment” (see Masotto v City of New York, 38 Misc 3d 1226[A] n 5 [Sup Ct, Kings County 2013]), it was being operated on a “public highway,” adjacent to and encroaching into the road on which plaintiff was driving (see Vehicle and Traffic Law §§ 125, 134). In addition, the accident arose out of the “use or operation” of the excavator, as the excavator was the “instrumentality” that produced plaintiff’s injuries (see Cividanes v City of New York, 95 AD3d 1 [1st Dept 2012], affd 20 NY3d 925 [2012]; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211 [1996]). The fact that it was not being operated and was unattended at the time of the accident does not preclude application of the statute, as it was only temporarily parked during ongoing construction work (see Trentini v Metropolitan Prop. & Cas. Ins. Co., 2 AD3d 957 [3d Dept 2003], lv dismissed 2 NY3d 823 [2004]; cf. Wooster v Soriano, 167 AD2d 233 [1st Dept 1990]).”

+Bonus attorneys fees June 8, 2018

Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 2018 NY Slip Op 03929 (1st Dept. 2018)

“Respondent is entitled to reasonable attorney’s fees for this appeal. Supreme Court has authority to award attorneys fees as this is an appeal from a master arbitration award pursuant to 11 NYCRR 65-4.10(j)(4), which, in pertinent part, provides: “The attorney’s fee for services rendered in connection with … a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (see also Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2d Dept 2017], recalling and vacating Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 139 AD3d 947 [2d Dept 2016]). Accordingly, we remand the matter to Supreme Court for a determination of respondent’s reasonable attorney’s [*2]fees for this appeal. To the extent Country-Wide Ins. Co. v Valdan Acupuncture, P.C. (150 AD3d 560, 561 [1st Dept 2017]) takes a different approach to calculating attorneys’ fees, we decline to follow it.”

Proof of causation June 3, 2018

Hernandez v Marcano, 2018 NY Slip Op 03816 (1st Dept. 2018)

However, in any event, defendants Marcano and Crescent Cab Corp.’s expert found full range of motion and absence of injury to the left shoulder, and defendants Alvarado and Cook submitted plaintiff’s hospital records showing that plaintiff sought no treatment for her shoulder after the accident, indicating that any shoulder condition was not causally related to the accident (see Lee v Rodriguez, 150 AD3d 481 [1st Dept 2017]).

In opposition, plaintiff raised an issue of fact as to her cervical and lumbar spine through her physician’s affirmed report, which found continuing range of motion limitations, positive results on objective tests for cervical and lumbar injury, and causally related these injuries to the accident (Moreira v Mahabir, 158 AD3d 518, 518-519 [1st Dept 2018]; Encarnacion v Castillo, 146 AD3d 600 [1st Dept 2017]; Santana v Tic-Tak Limo Corp., 106 AD3d 572 [1st Dept 2013]). Plaintiff also submitted affirmed reports of MRIs of her spine performed shortly after the accident.

To the extent plaintiff asserts a left shoulder injury, as noted, it was not pleaded in her bill of particulars, and, in any event, she submitted no evidence of contemporaneous treatment of the shoulder in the period following the accident, indicating a lack of any causal connection (see Rosa v Mejia, 95 AD3d 402 [1st Dept 2012]).

The bolded was my argument over 10 years ago in Stephen Fealy v. State Farm.  Well, I knew I was right then and I am correct now,


Infants compromise order not needed to proceed in arbitration in assignee case June 3, 2018

Matter of Fast Care Med. Diagnostics, PLLC/PV v Government Employees Ins. Co., 2018 NY Slip Op 03831 (2d Dept. 2018)

“We agree with the Supreme Court that the arbitrator’s award was irrational and in conflict with CPLR 1209, which applies “only where an infant is a party” to an arbitration proceeding (Goldenberg v Goldenberg, 25 AD2d 670, 670, affd 19 NY2d 759; see Schneider v Schneider, 17 NY2d 123, 127). The infant patient was not a party to the arbitration; rather, Fast Care, as the infant’s assignee, was the party that brought the arbitration (see 11 NYCRR 65-3.11[a]). Therefore, we agree with the court that the arbitrator disregarded established law in determining that the requirements of CPLR 1209 applied here (Schneider v Schneider, 17 NY2d at 127; see Goldenberg v Goldenberg, 25 AD2d at 670). Furthermore, the master arbitrator’s determination that the assignment of benefits was not effective was not based on any requirement set forth in established law or regulations (see generally 11 NYCRR 65-2.4[c]).”

Bonus attorney fees: “Fast Care did not demonstrate its entitlement to an award of an attorney’s fee, as the arbitrator did not reach the issue of whether the subject claims were “overdue””

Triable issue of fact: 45-day rule June 3, 2018

Irina Acupuncture, P.C. v Auto One Ins. Co., 2018 NY Slip Op 50781(U)(App. Term 2d Dept. 2018)

“Proof that documents are mailed in accordance with a standard mailing practice and procedure gives rise to a rebuttable presumption that the documents have been received (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the Civil Court’s finding, by demonstrating that it had received the claim forms at issue long after plaintiff claims to have mailed them, defendant raised a triable issue of fact as to whether plaintiff’s practices and procedures resulted in the timely mailing of the claim forms to defendant (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, Dept, 2d, 11th & 13th Jud Dists 2014]). Thus, plaintiff is not entitled to summary judgment on the second through fourth causes of action”