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Mortgage cases are now leading the charge on mailing issues November 17, 2017

HSBC Bank USA v Rice, 2017 NY Slip Op 07936 (1st Dept. 2017)

“In the affidavit, the loan servicer’s vice president of loan documentation fails to demonstrate a familiarity with the servicer’s mailing practices and procedures. Therefore, plaintiff did not establish proof of a standard office practice and procedure (see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890 [2d Dept 2017]; Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049 [2d Dept 2017]). Moreover, portions of the receipt in the record are blank, and an undated and unsigned return receipt is not [*2]sufficient to establish proof of the actual mailing”

Did his veteran status influence this decision? November 11, 2017

People v Rogers, 2017 NY Slip Op 07889 (3d Dept, 2017)

(1) Defendant, an army veteran, admitted to unlawfully entering a residence and taking a bottle of wine, claiming that he heard a voice telling him to do so. Following his arrest, he waived indictment and agreed to be prosecuted by a superior court information charging him with attempted burglary in the third degree. He pleaded guilty to this crime and waived his right to appeal, both orally and in writing. Under the terms of the plea agreement, he was to be sentenced to 1⅓ to 4 years in prison; however, if he successfully completed the alternative treatment

(2)  Significantly, defendant acknowledged during the plea colloquy that he had mental health problems, including posttraumatic stress disorder that caused him to experience hallucinations, that he heard a voice telling him to commit the crime at issue and that he was taking multiple medications, including Zoloft, to address his mental health problems. Although County Court observed that defendant appeared coherent and responsive during the plea proceedings, it did not ascertain if he was aware that a possible defense, emanating from his mental state at the time that he committed the crime, was available and that he was waiving it by pleading guilty. Inasmuch as an essential element of attempted burglary in the third degree is the intent to commit a crime inside a building that one has unlawfully entered (see Penal Law § 140.20), and defendant’s mental state potentially negated such intent, County Court should have conducted a further inquiry before accepting defendant’s guilty plea (see People v Mox, 20 NY3d 936, 938-939 [2012]; People v Green, 141 AD3d at 838-839; People v Wolcott, 27 AD3d 774, 775-776 [2006]). Accordingly, under the circumstances presented, we find that the guilty plea was not knowing, voluntary and intelligent and must be vacated. In view of our disposition, we need not address defendant’s remaining claim.

** I post this because judges are humans and sometimes they make blatant value judgments.  Take away the veteran status, and the felon conviction is affirmed.  I am not saying this is wrong, but it does not get more blatant than this.  I would have voted with the majority, if that means anything.

Non objected to EUO November 11, 2017

Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 2017 NY Slip Op 51518(U)(App. Term 2d Dept. 2017)

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 claims” (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]).”

I am still waiting for this Court to answer the following question: What happens when the medical provider objects to the EUO?  No answer on this one yet.

Discovery of the claims file – some limitations November 11, 2017

Celani v Allstate Indem. Co., 2017 NY Slip Op 07799 (4th Dept. 2017)

(1) Contrary to defendant’s contention, the court properly ordered disclosure of pre-disclaimer claim notes containing statements made by the father. It is well settled that “there must be full disclosure of accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than preparation for litigation” (Calkins v Perry, 168 AD2d 999, 999 [4th Dept 1990]; see Beaumont v Smyth, 306 AD2d 921, 921 [4th Dept 2003]). Here, the father made his statements to defendant’s investigators before defendant made the decision to disclaim, and there is no dispute that defendant’s employees relied on those statements in making that decision.”

(2)We agree with defendant, however, that the court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of the legal opinion of outside counsel and pre-disclaimer claim notes related thereto and denying that part of defendant’s cross motion seeking a protective order with respect to those items, and we therefore modify the order accordingly. Although reports prepared in the regular course of business are discoverable (see Lalka v ACA Ins. Co., 128 AD3d 1508, 1508-1509 [4th Dept 2015]), documents prepared by an attorney that are “primarily and predominantly of a legal character,” and made to furnish legal services, are absolutely privileged and not discoverable, regardless of whether there was pending litigation at the time they were prepared

** Note, this differs from the case from the First Department where the attorney was acting in a mixed role of fact finder and lawyer **

(3) We conclude that the court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of defendant’s claim investigation manual and denying that part of defendant’s cross motion with respect thereto without first conducting an in camera review. As the moving party, plaintiff had the burden of demonstrating that “the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” (Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [2d Dept 1989]; see Quinones v 9 E. 69th St., LLC, 132 AD3d 750, 750 [2d Dept 2015]). Inasmuch as the employee of defendant who made the ultimate decision to disclaim testified that the manual did not contain a definition of “resident,” the court should have reviewed the manual in camera to determine whether it contained information material and relevant to the issues to be decided in the action

** The claims investigation manual is possibly privileged.

Subsequent IME not allowed November 11, 2017

Kolodziejski v Jaskolka, 2017 NY Slip Op 07851

“While there is no restriction in CPLR 3121 limiting the number of examinations to which a party may be subjected, a party seeking a further examination must demonstrate the necessity for it” (Rinaldi v Evenflo Co., Inc., 62 AD3d 856, 856 [2d Dept 2009]). Here, the examining physician was able to reach a definitive conclusion as a result of the initial independent medical examination, and she never indicated that her analysis and/or conclusion were affected by plaintiff’s alleged refusal to perform certain tests. The court therefore properly declined to compel plaintiff to undergo a second independent medical examination “