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DMV license suspensions upheld – Deference May 11, 2017

Matter of Acevedo v New York State Dept. of Motor Vehs., 2017 NY Slip Op 03690 (2017)

Upon a conviction for a violation of Section 1192 of the VTL, the statute requires certain periods of revocation. The periods of revocation increase based upon the amount of prior Convictions.  But, the statute is self explanatory and sets forth a Legislative prerogative as to the nature and extend of license revocation for a violation of VTL 1192.

The Executive branch, upon application of VTL 510(1), promulgated regulations that at first blush, second blush and third blush conflict with the VTL with regard to license revocations,

According to the Court: “The Appellate Division panels determined that DMV did not exceed its regulatory authority because “it did not act on its own ideas of public policy, but rather implemented the Legislature’s policies of promoting highway safety” (Acevedo, 132 AD3d at 119), and because the Regulations represented “an appropriate discretionary determination by the Commissioner” (Carney, 133 AD3d at 1152-1153). The court also held that the Regulations do not conflict with the Vehicle and Traffic Law, and that they were not impermissibly applied retroactively to petitioners’ applications.”

But at the end of the day, the Court did held that the broad powers of the DMV allow regulations to be drafted that conflict with the VTL.

The analogy here is that the Court of Appeals has held that DFS opinion letters, even if they conflict with the Ins. Law or Ins. Dept. regulations, will be given complete deference.  Acevedo could stand for the proposition that Ins. Dept regulations that conflict with the Ins. Law could still be enforceable.  It is interesting.

This is what Perl spoke up against May 11, 2017

Lee v Rodriguez, 2017 NY Slip Op 03869 (1st Dept. 2017)

“They also submitted evidence that plaintiffs neither reported any injury to the police immediately after the motor vehicle accident nor sought any medical treatment shortly after the accident, indicating that their claimed injuries were not causally related to the accident”

I cannot say much more.

Intersection between collateral source hearing and no-fault May 11, 2017

 

Having been involved in the thicket of the collateral source hearing, it can be very frustrating to obtain the information and evidence necessary to oftentimes reduce the medical and wage portion of a verdict that is being compensated through another source.

(1)

Here, contrary to the plaintiff’s contention, the Workers’ Compensation and Social Security benefits that she was receiving as a result of the 2002 accident constitute a collateral source that could potentially offset her award from this action to recover damages in connection with the 2010 accident. Both the plaintiff and her vocational rehabilitation specialist testified that the plaintiff’s benefits would have ceased if she had begun to work again. Therefore, although the

(1) “plaintiff was not receiving Workers’ Compensation and Social Security benefits as a result of the 2010 accident, under the unique circumstances of this case, those benefits constituted collateral sources that could potentially offset her award”

(2) “However, the defendants, who did not submit any documentation from the Social Security Administration and who elicited the plaintiff’s inconsistent testimony as to the amounts she was receiving per month in Social Security disability benefits, failed to establish with reasonable certainty that the plaintiff had been receiving, or would continue to receive, Social Security disability payments”

(3) “Additionally, the defendants failed to establish with reasonable certainty that they paid for some of the plaintiff’s past medical bills through no-fault insurance. At the collateral source hearing, the plaintiff testified that she had taken out a loan of approximately $60,000 to pay for some of her treatment, and that some of her treating physicians had taken liens against her. Further, the defendants offered only copies of the plaintiff’s medical bills without any testimony from an expert or no-fault insurance adjuster to explain them (see Lahren v Boehmer Transp. Corp., 49 AD3d 1186, 1188). This evidence was insufficient to establish with reasonable certainty which portions, if any, of the plaintiff’s bills the defendants had paid”

Here, the Defendant’s failed to obtain the SSD records and therefore could not reduce past wages.  More problematic, Defendant failed to subpoena that no-fault carrier in order to obtain the proofs necessary to show the portions of the past medical billings that were paid or should have been paid under the PIP policy.

The issue in collateral source hearings is that you are attempting to obtain evidence, never received in disclosure after you got the hell beaten out of you at trial.  In addition, you need to prove the issue through clear and convincing evidence.  Not an easy task.

Police report and CPLR 4518(a) May 11, 2017

Shehab v Powers, 2017 NY Slip Op 03790 (2d Dept. 2017)

“Information in a police accident report is “admissible as a business record so long as the report is made based upon the officer’s personal observations and while carrying out police duties” (Memenza v Cole, 131 AD3d 1020, 1021; see Matter of Chu Man Woo v Qiong Yun Xi, 106 [*2]AD3d 818, 819; Yeargans v Yeargans, 24 AD2d 280, 282). Conversely, information in a police accident report is inadmissible where the information came from witnesses not engaged in the police business in the course of which the memorandum was made, and the information does not qualify under any other hearsay exception (see Matter of Chu Man Woo v Qiong Yun Xi, 106 AD3d at 819; Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396).

Here, the Supreme Court did not err in redacting certain information from the police report with respect to the location of the accident. There was insufficient evidence at trial to demonstrate that the disputed information was derived from the personal observations of the responding police officer, who did not witness the subject accident (see Wynn v Motor Veh. Acc. Indem. Corp., 137 AD3d 779, 780; Memenza v Cole, 131 AD3d at 1022; Noakees v Rosa, 54 AD3d 317, 318; Gagliano v Vaccaro, 97 AD2d 430). Moreover, the court did not err in precluding the plaintiff from cross-examining his own witness, the responding police officer, with respect to the accident location”

The police report many times is a vital piece of information in PI cases.  The rules regarding their admissibility becomes a hot bed of issues.

No-show based upheld despite objection – with a caveat May 11, 2017

First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593(U)(App. Term 2d Dept. 2017)

(1) “At the outset we note that plaintiff failed to establish that it had mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the objection letters that it attached to its opposition papers (see generally Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists [*2]2011] [where a plaintiff fails to object to an EUO request at the time it is requested, the plaintiff’s objections to the request may not be raised for the first time during litigation]).”

(2)  “In any event, the no-fault regulations provide that an insurer may request that a provider submit to an EUO as may reasonably be required (see 11 NYCRR 65-1.1 [b]) and, here, defendant demonstrated that the requests for the EUOs at issue pertain to claims which it had received after the January 11, 2013 EUO had been conducted.”

Clearly, we have a situation where the EUO of the EIP occurred and then the facility was then brought in for an EUO.  Objection letters were generated but not mailed.  Would it have mattered if the letters were nailed?  I see the words “in any event” and that could mean even if it was mailed, it would not be sufficient.  I am unsure, however, if that is the case.

There has been a dearth of cases on this issue viz. can an EUO be validly blocked when an objection letter as to the EUO is mailed to the carrier.  Again, we are waiting for the case where the objections letters are mailed and the Court reaches this precise issue.  Stay tuned.