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Use the Israel form databank when in doubt July 31, 2021

Doctor Goldshteyn Chiropractic, P.C. v Empire Fire & Mar. Ins. Co.. 2021 NY Slip Op 50722(U)(App. Term 2d Dept. 2021)

This case is remarkable for one thing and one thing only. Why wouldn’t you put the famous line in the stupulation: if payment is not made in ___ days. judgment will be entered in the sum set forth in the complaint without further notice to either party?

The reality according to the Appellate Division is if you seek to enter a clerk’s judgment for more than what is agreed to in the stipulation, then you need to make a motion to enter judgment. I am not researching the case, but I remember it from a few years ago.

Lost wages and first party: to arbitrate or to litigate July 27, 2021

I was having a conversation with a nameless friend and we were discussing the issue of handling lost wage no-fault cases as an Applicant. It had me thinking as i have had quite a bit of experience and I wish to share some of my 1. thoughts.

The NF-6 worker. There are only two type of first-party cases as an Applicant I would arbitrator. One is the straight hourly or salary NF-6 worker who has good meds, disability notes and could not return to his/her job following the accident. Strangely enough, those are not the cases I end up retaining (albeit I handle very few wage cases per year). But this is the case that I would always throw into arbitration because it is clean, easy and will 90% of the time be successful.

Evidentiary issue worker. These are cases involving the situation where the proofs that are necessary to prove the lost wage or first-party billing case are not in proper form and may never be in proper form. Consider lost wages from foreign employment, where the proofs are in a different language and cannot be certified. I had one of these cases, properly placed into arbitration and was successful. This type of case will give you grief in court.

Issues as to abnormal medicals: I have two cases (both affirmed under substantial evidence) where placing that matter into arbitration became problematic. One was the Miller case. . Miller had an interesting medical condition with his hand (a Dubyons’s nodule) that got progressively worse over time. Therefore, it was quite plausible to have a”normal IME” yet to have a disability 6-12 months post IME. He sought to recover medicals that were liened from his PI case and lost wages. The arbitrator held up the IME next to the “contemporaneous” notes and found against Applicant. Very mechanistic approach that works on volume provider cases; terrible in what I call real life cases. In retrospect, the case would have settled in litigation or a decent jury verdict would have been obtained in court. So the lesson here is to avoid anything that falls outside of the cookie cutter medical paradigm because the risk does not match the reward.

Issues as to non W-9 workers: This is also another type of case that can cause problems. This is the NF-7 abnormal employment situation. The law is a bit fuzzy on wage proof in no-fault and you may end up with an award that makes you scratch your heard. We saw this in Findlay, another questionable decision. Claimant had a contract of employment and presented proofs that the carrier honored this rate of pay in payment pre-IME and presented an NF-7 and other information to substantiate the “wage”. Arbitrator went a different direction and it was eventually affirmed. Again, on a volume client, this type of decision becomes a “shoulder shug” – for someone who was shortchanged on a PI case and seeks their wages, it is signification.

Issues as to strange wage loss: This is another one that is interesting. Client had to forego job opportunity due to injury and seeks difference between opportunity and current salary. Totally outside of the box and the few decisions I have seen are likewise a bit strange. Client will do better in court on this one.

Issues as to strange causation: I had another case where the issue of causation was “strange”, yet the insurance carrier recognized it and the IME doctors recognized it. The arbitrator went out on his own -because it was not a normal if x then y situation – and ruled adverse to the client. The Appellate Division even said at oral argument it was a bad decision – the phrase from Justice Mastro was “terrible decision”, yet the panel affirmed based upon substantial evidence. It is important to triage cases and understand that if you are outside the normal paradigm, do you want an arbitrator ruling on the case?

Prologue: I have also seen arbitration decisions on strange issues that have definitely gone in pro Applicant ways (as both defendant and Applicant) – so I do not mean to raise doom and gloom. But – consider this: If you have a niche issue, don’t you want to preserve you Appellate remedies? Arbitration strips away all meaningful review – make sure the issue you seek to present fits within the boxes. Don’t forget to thank me later.

A Civil procedure lesson in the form of a no-fault case – post judgment rate of interest is 2% July 22, 2021

Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 2021 NY Slip Op 04484 (2d Dept, 2021)

I will summarize this. Case started as a pre 2002 reg change no-fault matter in Civil Court. Provider obtained summary judgment, which during the Mary Immaculate and contemporary medical days was not too difficult. The law as it stands today makes it almost legally impossible for a provider to ever obtain full summary judgment – that does not mean Civil Courts routinely get it wrong – but that is a different story.

Provided waited a series of years before entering a judgment. Provider in 2005 enters a judgment. Provider in 2015 demands full compounded interest on judgment.

Allstate moves to have period of summary judgment to initial judgment “tolled’. Civil Court agrees with Allstate and strikes interest until judgment is entered. Appellate Term reverses but then says in “dicta” that the rate of interest in 9% after judgment is entered. BTW – trivia questions to the no-fault lifers – when was the other time the Appellate Term set forth explicit dicta in a decision? You will have to go back about 15 years or so.

Provider seeks leave to appeal and is denied by the App. Term and Second Department.

Provider goes to Supreme Court, filed a hybrid Article 52 turnover and declaratory action, and wins the plenary portion of the action. Allstate Appeals and loses big

Shout out to my friend and often adversary when he was in the no-fault rain-forest Amos Weinberg. I think Amos finally got his vindication when the Court said the following:

“Allstate argues on appeal that BZ’s commencement of a declaratory judgment action in the Supreme Court was merely a guise to make an end run around the Appellate Term determinations in the Civil Court action. As discussed below, since the Supreme Court had the authority to entertain the issue of postjudgment interest in an action for a declaratory judgment, and since the Appellate Term’s discussion of the applicable rate of interest was merely “advisory,” BZ’s filing, rather than representing an end run, may instead be viewed as good lawyering under the unusual circumstances of the parties’ procedural history.”

Anyway, the Court finds that Civil Courts order was not collateral estoppel or law of the case. The Appellate Term was politely warned to avoid dicta that can cause chaos. But the important issue: what is the post-judgment rate of interest on no-fault cases? It is 2% per month:

“As a general matter, the language of general statutes are to yield to the language of specific ones (see McKinney’s Cons Laws of NY, Book 1, Statutes § 238; Matter of Ford v New York State Racing & Wagering Bd., 107 AD3d 1071, 1078, affd 24 NY3d 488; J.N. Futia Co. v Schenectady Municipal Hous. Auth., 33 AD2d 591). In any event, CPLR 5004 expressly provides that “[i]nterest shall be at the rate of nine per centum per annum, except where otherwise provided by statute” (emphasis added), allowing for the recognition of statutes that may control certain interest calculations in more narrowly-defined areas of law.

Insurance Law § 5106(a) provides, in relevant part, that “[p]ayments of first party benefits and additional first party benefits shall be made as the loss is incurred[,] [s]uch benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained[,] . . . [and] [a]ll overdue payments shall bear interest at the rate of two percent per month” (see Insurance Law § 5106[a]; New York & Presbyt. Hosp. v. Allstate Ins. Co., 30 AD3d 492, 494). Under former 11 NYCRR 65.15(h), which was in effect at the time of the underlying accident in 1999, “[a]ll overdue mandatory and [additional] personal injury protection benefits due an applicant or assignee shall bear interest at a rate of two percent per month, compounded and calculated on a pro rata basis using a 30-day month” (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 871; Cardinell v Allstate Ins. Co., 302 AD2d 772, 774; Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338, 339). The regulation was recodified as of April 5, 2002, as 11 NYCRR 65-3.9, so that more recent decisional authorities refer to the recodified number. The objective of the statute and regulation is to assure the prompt and full payment of economic claims, with the infliction of a monetary sanction or penalty on those insurers which do not comply (see Matter of McKenna v County of Nassau Off. of County Attorney, 61 NY2d 739, 742; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 210; Cardinell v Allstate Ins. Co., 302 AD2d at 774). Insurance Law § 5106(a) and former 11 NYCRR 65.15(h), which were specific directives, supersede the interest provisions contained in CPLR 5004, the more general statute (see Smith v Nationwide Mut. Ins. Co., 211 AD2d 177, 181; Matter of McMillan [Unionamerica Reins. Co.], 70 AD2d 659, 659; Matter of Government Empls. Ins. Co. [Lombino], 57 AD2d 957, 959; Aetna Cas. & Sur. Co. v Whitestone Gen. Hosp., 142 Misc 2d 67, 70 [Sup Ct, New York County]).

Insurance Law § 5106(a) and former 11 NYCRR 65.15(h) directly apply to the dispute and judgment in controversy in this action. Accordingly, the Appellate Term’s advisory opinion in the decision and order dated August 18, 2017, and the decision and order on motion dated December 14, 2017, that the postjudgment interest here was governed by CPLR 5004, was incorrect on the law. To the extent that opinions from the Appellate Term provide otherwise as to the proper rate of interest, they generally should no longer be followed in applicable instances.”

And as was said after Tommy Devito was killed after taking out made man Billy Batts “And that’s that”.

EUO – condition precedent in Fla July 18, 2021

MIRACLE HEALTH SERVICES, INC., A/A/O KIRENIA TAMAYO, vs PROGRESSIVE SELECT INSURANCE COMPANY, No. 3D21-14

I really find the analysis here telling and quite biting.

(1) “Miracle Health sent Progressive four sets of bills for Tamayo’s treatment, which Progressive received on May 21, 2014, June 2, 2014, June 23, 2014 and July 18, 2014, respectively. On June 23, 2014, Progressive sent Tamayo a notice to appear for an EUO, scheduled on July 31, 2014. Tamayo failed to appear for the first and then a second subsequently scheduled EUO. Pursuant to the policy provision requiring the insured to submit to an EUO before receiving PIP benefits, Progressive denied payment of benefits.”

(2) “Progressive answered alleging Miracle Health was not entitled to receive benefits because the insured failed to comply with the condition precedent to receiving benefits under the terms of the policy and section 627.736(6)(g), Florida Statutes (2013). Progressive filed a motion for summary judgment with accompanying affidavit establishing that Tamayo failed to appear for the scheduled EUOs. Miracle Health argued that because three sets of bills were overdue prior to the first scheduled EUO, Tamayo was discharged of her statutory and contractual duty to submit to an EUO.”

(3) “The trial court entered summary judgment in favor of Progressive.”

(4) “Despite this direct legislative response, Miracle Health argues that the policy’s condition precedent is actually a condition subsequent because it is an obligation which arises after the formation of the contract.”

(5)(a) “This argument ignores the basic principle that: “[u]nder well established contract law, a condition precedent is a condition which calls for the performance of an act after a contract is entered into, upon the performance or happening of which its obligation to perform is made to depend.” Univ. Hous. by Dayco Corp. v. Foch, 221 So. 3d 701, 704 (Fla. 3d DCA 2017) (quoting Racing Props., L.P. v. Baldwin, 885 So. 2d 881, 882–83 (Fla. 3d DCA 2004)).

(5)(b) “A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract.”

(5)(c) “Conditions precedent to an obligation to perform are those acts or events, which occur subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a reach of contractual duty.”

(6)(a) “Our holding in Amador was limited. In determining whether the insured’s failure to submit to an EUO was a bar to filing suit, “we [held] that, because of the special nature of, and protection afforded by, the PIP statute, upon expiration of the 30-day period, the insurer is itself in breach of the contract and may therefore, not deny an insured the right to access the courts for purposes of enforcing the PIP statute.” Amador,748 So. 2d at 309.

(6)(b) “We cannot, and do not, read Amador for the proposition that an insurer’s failure to pay PIP benefits within thirty days thwarts its ability to investigate the claim or discover facts by discharging the insured’s statutory obligation to comply with conditions precedent to receiving benefit.”

I think this is a good citation to buttress Unitrin.

Respond at your own peril July 12, 2021

Matter of Philadelphia Ins. Indem. Co. v Kendall, 2021 NY Slip Op 04284 (1st Dept, 2021),

It is always an interesting issue that is presented: Will an email satisfy the writing requirement of CPLR 2104? The answer used to be it depends:

“Supreme Court relied on the Second Department’s decision in Forcelli v Gelco Corp. (109 AD3d 244 [2d Dept 2013]). Forcelli is in accord with this Court’s precedent, and we have cited it as persuasive authority (see Jimenez [*3]v Yanne, 152 AD3d 434, 434 [1st Dept 2017]). In Forcelli the plaintiff reached an agreement with the defendant to settle his personal injury case while the latter’s summary judgment motion was pending, and the parties’ counsel exchanged emails confirming that the plaintiff’s counsel had accepted the offer and would prepare the release for the plaintiff to sign (109 AD3d at 245-246). The same day that the court granted the defendant’s motion for summary judgment dismissing the case, the plaintiff’s counsel sent the requested documents to the defendant’s counsel (id. at 246-247). The defendant then refused to proceed with the settlement (id. at 247).

The Second Department held that the parties’ counsels’ emails created a binding settlement agreement (id. at 248-251). As for CPLR 2104’s subscription requirement, the Court held that the defendant’s counsel’s email containing her printed name at the end thereof supported the conclusion that she effectively signed the email message:

“we note that the subject email . . . ended with . . . , ‘Thanks Brenda Greene,’ which appears at the end of the email text. This indicates that the author purposefully added her name to this . . . email message, rather than a situation where the sender’s email software has been programmed to automatically generate the name of the email sender, along with other identifying information, every time an email . . . is sent” (id. at 251). The rule espoused by Forcelli and our own precedent is that an email in which the party’s or its attorney’s name is retyped at the end of an email is sufficiently subscribed for purposes of CPLR 2104.”

Now, it appears, yes.

“We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. 

“While we jettison the requirement that a party or a lawyer retype their name in email to show subscription, that does not mean that every email purporting to settle a dispute will be unassailable evidence of a binding settlement.”

This appears to be the right decision. I left our the facts but you know it was a settlement where either (1) A court/arbtrator threw case out (defendant appeal; or (2) A court or arbitrator ruled more than what was in the settlement (Plaintiff appeal). This fell in the latter lol.