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Article 75 lay-up September 4, 2019

Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc., 2019 NY Slip Op 06445 (1st Dept. 2019)

I know AAA will not like this decision. But as we told the master arbitrator in our brief, this is the law. The master refused to listen.

The above thought actually traces back to a recent snarky post on the No-fault group on Facebook One poster I think hailed a AAA decision about the inability to delay for recorded statements as gospel. Another poster found a Civil Court case saying the same thing. I then found an App Term case from 12 years prior that was contrary. What is my point? Do not trust AAA (or the App. Term) on the law if you think you are right.

Truth be told, the App. Div First Department will grant you leave if you can show them that an App Term decision is inconsistent with precedent, common sense or of significant import. While I do not agree with every decision from that Court, you know that your applications are getting attention at that tribunal. Again, the First Department only hears cases from two counties and has significant resources to give cases the attention they deserve.

The Second Department, however, is a lot more sparring with their grants of leave. They will only grant leave if the issue is hot button and involves millions of dollars, if not addressed. For proof, ask yourself why that court heard a pre-LMK interest case and will hear the Alleviation case. That said, leave will almost never be granted in mundane cases.

In fact, if you were to track First and Second Department CPL 440 leave applications, you would see the same trend. I do not blame the Second Department for its stinginess in granting leave application, despite being the victim of perfunctory leave denials. That Court is the busiest appellate court in the country.

Time for a Fifth Appellate Division anyone?

As to this case:

“Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 31, 2018, which denied the petition to vacate a master arbitrator’s award, unanimously reversed, on the law, without costs, and the petition granted.

The master arbitrator’s award was arbitrary because it irrationally ignored the controlling law that the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical exams (see Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]; American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]).”

The additional verification paradigm (again) September 4, 2019

Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51409(U)(App. Term 2d Dept. 2015)

“At a nonjury trial held on February 26, 2016, the Civil Court noted that the only issue to be determined was whether plaintiff had provided the requested verification, stated that the burden was on plaintiff, and directed plaintiff to call its first witness. Plaintiff did not call any witnesses, arguing that the burden was on defendant to first establish that it had not received the requested verification. With no testimony having been presented, the Civil Court found for defendant on the ground that plaintiff had failed to demonstrate that it had provided the requested verification. Plaintiff appeals from a judgment entered March 21, 2016, dismissing the complaint.”

This is at most the follow-up to the Travelers case of last week.

The first citing of 65-3.5(p) – somewhat ominous August 27, 2019

Lida’s Med. Supply, Inc. v Hereford Ins. Co., 2019 NY Slip Op 51356(U)(App. Term 2d Dept. 2019)

65-3.5(p): “With respect to a verification request and notice, an insurer’s non-substantive technical or immaterial defect or omission, as well as an insurer’s failure to comply with a prescribed time frame, shall not negate an applicant’s obligation to comply with the request or notice. This subdivision shall apply to medical services rendered, and to lost earnings and other reasonable and necessary expenses incurred, on or after April 1, 2013.”

“However, since defendant failed to establish that its follow-up IME scheduling letter was timely (see 11 NYCRR 65-3.6 [b]), its cross motion for summary judgment dismissing the complaint was properly denied. Defendant’s contention regarding the applicability of 11 NYCRR 65-3.5 (p) is improperly raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it.”

The problem with this argument is that (p) on its face subverts 3.5(d), 3.5(b) and 3.6(b). It also conflicts with 5106(b) as to the 30-day pay or deny rule. In terms of an IME, 3.5(d) would have to control and 3.6(b) would be on point as to the follow-up. I could see 3.5(p) construed or “harmonized” to allow a late follow-up verification, but not a terribly late follow-up verification. It is an interesting paradigm on its face.

In the old days, we would ask Chris Maloney or Larry Fuchsberg for their opinion on the interplay between 3.5(p), 3.5(b), 3.6(b) and 3.5(d). But the opinion letter days ended before most attorneys in no-fault obtained their law licenses. I would love to know what DFS has to say. It will be up to the Court on a proper record to interpret 3.5(p). That worries me.

Bad faith? No Bad faith? Annoyed? August 26, 2019

Medical Care of W. N.Y. v Allstate Ins. Co., 2019 NY Slip Op 06243 (4th Dept. 2019)

Greater Buffalo Acc. & Injury Chiropractic, P.C. v Geico Cas. Co., 2019 NY Slip Op 06349 (4th Dept. 2019)

This one is hard for me to fathom. The provider appears to be upset at how claims were handled without giving concrete examples of how each case improperly handled. Furthermore and assuming the claims were not properly handled, what are the damages? A medical provider can never bill in excess of the fee schedule. Thus, any damages would be limited to the fee schedule amount of the billing. Of course, policy exhaustion would not apply in a bad faith scenario.

On a direct first-party wage case or UM case, you would be able to exceed the policy limits. But on a medical bill case, it is hard for a court to award unlimited damages to a medical provider when the law constricts their recovery to a given sum.

The stop short paradigm August 26, 2019

Niedzwiecki v Yeates, 2019 NY Slip Op 06249 (4th Dept. 2019)

Another Fourth Department case that just makes you think, what the heck. Rear-end collision, which means rear-most driver is liable absent a non-negligent explanation. Here, it was the lead vehicle stopping short. I would note that this explanation in the first and second department without compelling objective evidence that rear-most driver was not negligent or the short stop was unreasonable would not defeat a summary judgment motion.

That said, the Fourth Department says there is a triable issue of fact. This would not be true in downstate New Yorj Anyway, this is where the case just gets crazy.

“Here, plaintiff failed to meet her initial burden on the cross motion inasmuch as she submitted the deposition testimony of defendant, in which he ” provided a nonnegligent explanation for the collision,’ ” i.e., that the collision occurred when plaintiff stopped abruptly in front of his vehicle after a nonparty vehicle suddenly pulled in front of plaintiff’s vehicle (Gardner v Chester, 151 AD3d 1894, 1896 [4th Dept 2017]; see Rosario v Swiatkowski, 101 AD3d 1609, 1609 [4th Dept 2012]). Thus, plaintiff’s own submissions raise “a triable issue of fact as to whether a nonnegligent explanation exists for the rear-end collision” (Bell v Brown, 152 AD3d 1114, 1115 [3d Dept 2017]; see Rosario, 101 AD3d at 1609-1610; see also Macri, 164 AD3d at 1643; Tate, 125 AD3d at 1398-1399).

We reject defendants’ contention, however, that the court erred in granting the cross motion with respect to the affirmative defense based on the emergency doctrine. Plaintiff met her initial burden of establishing that the emergency doctrine is not applicable to the facts of this case, and defendants failed to raise a triable issue of fact (see generally Shehab v Powers, 150 AD3d 918, 920 [2d Dept 2017]).

Finally, we reject defendants’ further contention that the court erred in granting the cross motion with respect to the affirmative defense of comparative negligence. Plaintiff met her initial burden of establishing that she was free from comparative negligence by submitting evidence that she was required to stop short in front of defendant’s vehicle in order to avoid colliding with the nonparty vehicle that suddenly pulled in front of her vehicle. In opposition, defendants failed to submit “evidentiary proof in admissible form” sufficient to raise an issue of fact to defeat that part of the cross motion (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).”

I would love for this case to be certified to the Court of Appeals.