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4518(a) September 25, 2020

Double hearsay

“In this case, even without the police accident report, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability through his own affidavit, which established that Blackman was negligent in striking the plaintiff’s vehicle while it was stopped and waiting to make a right turn (see Montalvo v Cedeno, 170 AD3d 1166, 1167; Martinez v Allen, 163 AD3d 951, 952). However, in opposition, the defendants raised a triable issue of fact as to Blackman’s negligence, through the submission of, inter alia, Blackman’s affidavit, in which he claimed that the plaintiff’s vehicle was double-parked to the right side of his vehicle, and that “[a]s I attempted to pass the [plaintiff’s vehicle], the [p]laintiff . . . suddenly moved forward and cut me off to get in front of my vehicle in order make a right turn” (see Ortiz v Hub Truck Rental Corp., 82 AD3d 725, 727; Reitz v Seagate Trucking, Inc., 71 AD3d 975, 976).

Since the uncertified police accident report was inadmissible, we do not reach the [*2]plaintiff’s contention that Blackman’s affidavit should be disregarded as a feigned attempt to avoid the consequences of the admission he purportedly made to the police officer who prepared the police accident report (see generally Abramov v Miral Corp., 24 AD3d 397, 398).”

The problem I have with this case is that oftentimes, the DMV does take possession of local police reports. This makes the certification process difficult. I also do not see why the reports can be entered subject to a challenge from the opponent alleging on affidavit that the facts in the report are not true. This is just silliness and typical New York form over substance nonsense.

Ubder D-Duber fail September 25, 2020

Uy v Hussein, 2020 NY Slip Op 05080 (2d Dept. 2020)

“In any event, even considering Hussein’s affidavit, as well as an affidavit submitted in reply by Uber representative Chad Dobbs, which contained essentially the same averments as Hussein’s affidavit, Uber failed to meet its burden. An action may be considered to be within the scope of employment, thus rendering an employer vicariously liable for the conduct, when “the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” (Pinto v Tenenbaum, 105 AD3d 930, 931). Whether an employee was acting within the scope of his or her employment is generally a question of fact for the jury (see Camisa v Rosen, 150 AD3d 809, 810-811).

Here, contrary to Uber’s contention, the averments of Hussein and Dobbs that Hussein had logged off of the Uber app 40 minutes before the accident were simply insufficient, without more, to eliminate all questions of fact as to whether Hussein was acting within the scope of his alleged employment with Uber at the time of the incident”

Add this to the Postmates case from March 2020 and the California Court’s examination of the Uber issue and it looks like Uber et. al. cannot escape liability. Why is this important? In most states, Uber et. al. writes $1m in third-party coverage when an MVA occurs when someone is on the app. In New York City, the coverage is limited to $100k since the vehicles are considered liveries. So now, Uber vehicles have brought back a dangerous analogue of the pre-Graves cases for rentals. Also, in Long Island and upstate, the Court has actually expanded liability beyond the on and off the App through citing my name sake, Tenenbaum,

Uber D’duber!

Place a call and your jurisdictional defense will fall September 25, 2020

State Farm Fire & Cas. Co. v Davis, 2020 NY Slip Op 51008(U)(App. Term 2d Dept, 2020)

“Nevertheless, a lack of jurisdiction claim will be deemed waived where a defendant has implicitly acknowledged the validity of a default judgment or has unreasonably delayed in moving to vacate the judgment (see Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627, 628 [2014]; Taveras v City of New York, 108 AD3d 614, 617 [2013]; HSBC Bank USA, N.A. v A & R Trucking Co., Inc., 66 AD3d 606 [2009]). Here, it is undisputed that seven years before moving to vacate the judgment, defendant had called plaintiff’s attorney’s office in order to negotiate payment of the judgment. Defendant thereby implicitly acknowledged the existence of the judgment and demonstrated a lack of good faith by dilatorily asserting his rights.”

The chiropractor rate September 25, 2020

S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y., 2020 NY Slip Op 51004(U)(App. Term 2d Dept. 2020)

Well in a few weeks and to the extent people still treat for motor vehicle accidents, this will be placed in the New York no-fault relic garbage can.

“With respect to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the unpaid portion of plaintiff’s claims which were denied on the ground that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule, defendant established that it had fully paid plaintiff for the services billed under CPT codes 97810, 97811, 99202, and 99212 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Likewise, defendant demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97026, except for the services rendered on December 11, 2015, March 1, 2016, March 17, 2016 and March 28, 2016, in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see id.). Thus, defendant established its prima facie entitlement to summary judgment upon the unpaid portion of those claims.”

The NF-2 September 25, 2020

Colin v Global Liberty Ins. Co. of N.Y., 2020 NY Slip Op 51002(U)(App. Term 2d Dept. 2020)

“The record demonstrates conclusively that the address to which the IME scheduling letters had been mailed to plaintiff’s assignor matched the one provided by plaintiff’s assignor on the assignor’s sworn application for no-fault benefits (NF-2) and on plaintiff’s NF-3 forms, all of which were submitted to defendant. To the extent plaintiff contends that defendant was required to also send the IME scheduling letters to the same address but with a zip code which differed by one digit simply because the police report set forth that zip code, that contention lacks merit. Not only did plaintiff’s assignor swear under penalty of perjury that the zip code which defendant used was the correct zip code, plaintiff’s opposition papers did not contain an affidavit from plaintiff’s assignor which asserted that the zip code to which defendant mailed the IME scheduling letters was incorrect.”