No need for traverse hearing where there was no opposition March 13, 2017

Wells Fargo Bank, N.A. v DeCesare, 2017 NY Slip Op 01592 (2d Dept. 2017)

“The detailed and specific evidence submitted by DeCesare in support of her motion was sufficient to rebut the allegations contained in the process server’s affidavit of service, thereby shifting the burden of proof to the plaintiff to establish jurisdiction at a hearing by a preponderance of the evidence (see Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344). However, because the plaintiff, which was well aware of the existence of the motion, elected not to file any opposition papers, no hearing was required, and the Supreme Court should have granted DeCesare’s unopposed motion and vacated the order of reference (see Walter v Jones, Sledzik, Garneau & Nardone, LLP, 67 AD3d 671).”

The added bonus is that the statute of limitations has probably run and now the Defendant has a house free and clear.

5102(d) litigation: Plaintiff’s own records non-suit him March 13, 2017

Khanfour v Nayem, 2017 NY Slip Op 01637 (1st Dept. 2017)

The prior medical conditions of Plaintiff’s looking to beat the threshold get it their way, many times.  This case is a great example of causal relationship gone awry

Cervical spine

“However, plaintiff’s earlier treating physician acknowledged that plaintiff’s own X-ray report revealed multilevel “disc disease” and “bilateral foraminal impingement due to foraminal osteophytes.” Since plaintiff’s own medical records provided evidence of preexisting degenerative changes, his pain management specialist’s conclusory opinion, lacking any medical basis, was insufficient to raise an issue of fact since it failed to explain how the accident, rather than the preexisting disc disease and osteophytes, could have been the cause of plaintiff’s cervical spine condition”

Lumbar spine

However, plaintiff’s postaccident treatment records show that he had normal or near normal range of motion within two months after the accident, which is insufficient to support a serious injury claim (see Gaddy v Eyler, 79 NY2d 955 [1992]). Three years later, plaintiff’s pain management specialist found arguably significant limitations in [*2]lumbar spine range of motion, but failed to reconcile his findings with the earlier conflicting findings, and defendants are therefore entitled to summary judgement.

As to the lumbar spine, this actually conflicts (somewhat) with the no-fault case of Huntington Med. Plaza, P.C. v. Travelers Indem. Co., 43 Misc. 3d 129(A) (App. Term 2d Dept. 2014): “As the Civil Court stated, one of those doctors specifically noted that a person’s condition can “wax and wane” after a motor vehicle accident and that, therefore, a finding that the treatments at issue in the prior cases were not medically necessary does not conclusively prove that the treatments at issue in this case were not medically necessary.”

The analogy being that if the Claimant is deemed fine, there needs to be more of an explanation then “good days and bad days” to escape the finding of lack of causation (assuming resolved injuries).  I never liked Huntinton/Travelers for the reason that once its prima facie proven that the injury is resolved, the “good day/bad day” analogy is weak.


Verification lack of response affirmed/Judge Ciaffa’s opinion prevails March 13, 2017

Advantage Radiology, P.C. v Nationwide Mut. Ins. Co.. 2017 NY Slip Op 27061 (App. Term 2d Dept. 2017)

“Plaintiff’s contention that, pursuant to 11 NYCRR 65-3.6 (b), upon sending the follow-up verification request to plaintiff, defendant was required to send plaintiff’s attorney a delay letter lacks merit, as there is no such requirement, where, as here, the party from whom the verification is sought is the plaintiff, rather than another person or entity (see GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42, 44 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

To the extent plaintiff contends that, in accordance with the letter received from plaintiff’s counsel, defendant was obligated to send the initial and follow-up verification requests to plaintiff’s counsel, we disagree. Insurers are obligated to comply with the no-fault regulations, which require that both the initial and follow-up verification requests be sent to the party from whom the verification is sought (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]) and, thus, defendant cannot be penalized for sending the verification requests to plaintiff notwithstanding the request from plaintiff’s counsel”

The opinion here follows the opinion of Former Judge Ciaffa in  Advanced Neurological Care, P.C. v. State Farm Mut. Auto. Ins. Co., 38 Misc. 3d 750, 754-55 (Dist. Ct. Nassau 2012).

The rub for the providers is that when their collection attorney/biller sends a letter of rep, the failure to mail the verification letters to the attorney is not necessary.  Of course, this could also mean that IME and EUO letters (verification requests)  do not need to be sent to counsel for the EIP/provider to be deemed valid.  The above-notwithstanding, the better practice is to mail the letters to the EIP/provider and any counsel representing them.

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.