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The First Department dismisses a medical necessity case September 29, 2018

Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 51358(U)(App. Term 1st Dept. 2018)

In opposition, the affidavit of plaintiff’s principal failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining acupuncturist/chiropractor, including the normal results of the range of motion testing (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]).”

The test is whether there was an examination of the Assignor that did not have normal findings.  The open question here is the time period of when this examination must take place.  In this case, there was an examination that pre-dated the IME by 2-3 months.  This was not sufficient.  There was also scribbled treatment notes, but that will not carry the day.  Also, do not mistake this case for the “contemporaneous” fallacy that has plagued AAA arbitrators when sizing up medical evidence.

My sense is when all the leaves on this issue are shaken out (there is more shaking going on than you are probably aware of), arbitrators may be stuck engaging in the painful task of looking at blocks of post IME treatment and determining whether they are appropriate once the presumption of medical necessity in the first instance is rebutted.   That is, the Charles Sloan and Burt Feilich rule may very well be the correct statements of law.

A 65-3.2 sighting September 29, 2018

Village Med. Supply, Inc. v Travelers Prop. Cas. Ins. Co., 2018 NY Slip Op 51311(U)(App. Term 1sr Dept, 2018)

“Defendant-insurer established its prima facie entitlement to summary judgment dismissing the underlying first-party no-fault claims as premature, since the record conclusively establishes that plaintiff failed to respond to timely requests for verification (see St. Vincent Med. Care, P.C. v. Country Wide Ins. Co., 80 AD3d 599, 600 [2011]). No triable issue was raised by plaintiff’s claim that defendant had no “good reason” (11 NYCRR 65-3.2[c]) for its verification request for a manufacturer’s invoice documenting the cost of the supplies provided to the assignor (see New Way Med. Supply Corp. v State Farm Mut. Auto Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50925[U] [App Term 2d, 11th and 13th Jud Dists 2017]; see also 12 NYCRR 442.2[a]).”

So while this was a win for the insurance carrier, 3.2(c) now serves as a basis to defeat a verification request.  My study of this area of law has shown fleeting citations of 3.2(c), but now it is clearly in vogue.

This one gave me pause September 15, 2018

Matter of MAPFRE Ins. Co. of NY v Callahan,  2018 NY Slip Op 06016 (2d Dept 2018)

Facts:

“The Supreme Court ordered a framed-issue hearing to resolve the various issues raised by MAPFRE. Following a lengthy period of delay during which numerous adjournments of the hearing were granted, the matter was marked final and scheduled to be heard on May 19, 2016. MAPFRE’s counsel and a witness for MAPFRE appeared for the hearing. Callahan failed to appear on that date, despite having been subpoenaed. Moreover, although her attorney answered the calendar call that morning and indicated his readiness to proceed, he did not appear when the court convened the hearing less than two hours later, despite his receipt of text messages from opposing counsel requesting his presence, and he did not advise the court in advance that he might be delayed due to appearances on other matters. The court granted the petition on Callahan’s default and subsequently denied her motion pursuant to CPLR 5015(a)(1) to vacate the default.”

This is the decision denying vacatur of the order.  Maybe I am getting too soft in my second decade of practicing because I would probably have not taken the default or consented to vacate the order if the facts as presented by Respondent in his order to show cause are true.  But I cannot necessarily fault Petitioner’s counsel since he was sitting there for two hours twitting his thumbs after being sent out, and he was probably pissed as he had other things to do that day.  It is a judgment call and, again, I hate to see other attorneys get jammed up for stuff like this.

For what its worth, I think my second employer would have fired me if I did not take the default in this situation.  Thus,  I cannot even pretend to tell you the reader what the right answer is in this case.

But let this be a lesson and I am taking note here that if you have to run around Court or various courts (heaven knows we all do) and you have a hearing, tell the part clerk you have three other things.  That looks to be the difference in this case as to why the OSC was not grated.

 

A second affidavit to clarify is allowed August 23, 2018

Cuevas v Baruti Constr. Corp., 2018 NY Slip Op 05905 (1st Dept. 2018)

“The motion court properly accepted Veras’s second, clarifying affidavit in plaintiff’s submission on reply. The second affidavit merely amplified the factual recitation set forth in Veras’s initial affidavit, which had been procured and drafted by the defense and omitted the pertinent detail that the workers were actually in the process of lowering the machine from the roof, and not engaged in pushing it across the flat roof, when the accident occurred. Veras’s second affidavit was a proper response to defendant’s submission, and did not contradict the statement in his first affidavit (see Cox v McCormick Farms, 144 AD3d 1533 [4th Dept 2016] [where question was not directly asked in deposition, proper to consider subsequent affidavit providing greater specificity without directly contradicting deposition testimony]; Severino v 157 Broadway Assoc., LLC, 84 AD3d 505 [1st Dept 2011] [same]). Nor could Veras’s second affidavit be rejected as raising a feigned issue of fact (see Sutin v Pawlus, 105 AD3d 1293 [3d Dept 2013]; Kalt v Ritman, 21 AD3d 321 [1st Dept 2005]), especially since it comported with all of the other eyewitness testimony in the case, as well as with Veras’s own early unsworn statement, and explained the ambiguity arising from the omission of additional details in his first affidavit.”

When is reargument granted? August 23, 2018

Budoff v City of New York, 2018 NY Slip Op 05817 (2d Dept. 2018)

“As the Supreme Court reviewed the merits of the plaintiff’s contentions raised in his motion for leave to reargue, “the court, in effect, granted reargument and adhered to its original determination”…