Substantive fee schedule discussion/Procedural analysis June 10, 2017

Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706(U)(App. Term 2d Dept. 2017)

(1) “With respect to the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule, we find that defendant did not establish its prima facie entitlement to summary judgment, as it failed to provide an expert’s affidavit to explain its interpretation of the fee schedule at issue”

** this was clearly an issue of  “additional bonus codes” that were by report or where the carrier sough to change the billed for code.  It does not involved 97810, 97811, 97813, 97814 or modality codes with RVUs compensated at the Chiropractor rate **

(2) “We note that, contrary to defendant’s argument, the omission of the jurat in Dr. Vatelman’s affirmation is not fatal (People ex rel. 5th Ave. & 37th St. Corp. v Miller, 261 App Div 550, 552 [1941], affd 286 NY 628 [1941]; see also People v Gouiran, 192 AD2d 620 [1993]), particularly in the absence of a showing of substantial prejudice to defendant (see CPLR 2001).”

** People ex rel. Fifth Ave. & 37th St. Corp. v. Miller, 261 App. Div. 550, 553 (1st Dept. 1941), aff’d, 286 N.Y. 628 (1941)

‘The courts are not entirely agreed as to the effect of the omission of a jurat or a signature thereto upon the affidavit. According to the majority view, such an omission is not fatal to the validity of the affidavit, so long as it appears, either from the rest of the instrument or from evidence aliunde, that the affidavit was, in fact, duly sworn to before an authorized officer. This rule is based upon the principle that a party should not suffer by reason of the inadvertent omission of the officer to perform his duty. Under this view, an affidavit defective by reason of the omission of the jurat of the officer’s signature may, upon proof of its authenticity, be cured by amendment

2 consecutive error disallow default vacatur June 10, 2017


Here, defendant proffered an affidavit by its [*2]claims examiner, who merely stated that he was supposed to forward the summons and complaint to defense counsel, but did not, and “it was a mistake.” The claims examiner explained defendant’s default in opposing plaintiff’s motion for leave to enter a default judgment by stating that plaintiff’s motion had not been scanned into defendant’s file system until the date the motion was returnable, and that it was forwarded to defense counsel the following day. Under the circumstances presented, we find that defendant failed to establish a reasonable excuse for its default

Here, there were two errors that claims made: (1) The failure to forward the summons and complaint; (2) the failure to forward the default application, on notice.  This was not intentional clearly, and fits within the gambit of claims office failure.  Harcztark v. Drive Variety, Inc., 21 AD3d 876, 876 (App. Term 2d Dept. 2005)

Yet, under the two strike rule here, these actions on the part of the carrier were fatal.  Sadly, this Court and its cousin on Monroe Place pay “lip service” to the pubic policy of cases being heard on their merits.  Oh, do I think the courts squeeze insurance carriers harder than civilians who are sued and default?  Well you can answer that question.  I feel like these decisions read more like Justice Stephen Crane’s dissent in Harcztark than the unsigned majority opinion in that case.

Extraordinary fee June 10, 2017

A.B. Med. Servs., PLLC v Motor Veh. Acc. Indem. Corp., 2017 NY Slip Op 50676(U)(App. Term 2d Dept. 2017)

(1) “Assuming without deciding that 11 NYCRR 65-4.6 (f), a no-fault regulation, could properly be applied to postjudgment enforcement litigation, such as that involved herein, we nonetheless agree with the Civil Court’s finding that the issues in dispute here were not so novel or unique as to require extraordinary skills or services warranting attorney’s fees in excess of those provided for in the no-fault regulations, regardless of the outcome obtained

(2) “Indeed, plaintiffs’ counsel’s own timesheets indicate that the attorneys involved spent less than two and a half hours on legal research on these allegedly “novel” issues.”

Default reinstated on utter technicality June 10, 2017

K.O. Med., P.C. v Avis Budget Group, 2017 NY Slip Op 50687(U)(App. Term 2d Dept. 2017)

(1) “On September 11, 2014, defendant served an answer, which plaintiff rejected as untimely.  Upon plaintiff’s application, a default judgment awarding plaintiff the principal sum of $2,069.76 was entered on October 1, 2014. Defendant moved by order to show cause, returnable on October 31, 2014, to compel plaintiff to accept the answer.”

(2) “Defendant’s motion should have been denied, as defendant failed to move to vacate the duly entered default judgment and as the court did not treat defendant’s motion as one seeking that relief. In view of the foregoing, we do not consider defendant’s proffered excuse for its default.”

The lesson learned here is that when an answer is rejected as untimely, the motion should always seek the following relief: (1) Motion to vacate pursuant to CPLR 5015(a)(__); (2) Motion to compel acceptance of answer, pursuant to CPLR 3012(d); (3) (sometimes) Motion to vacate any default based upon the Court’s interest of justice jurisdiction (Woodson v. Mendell Leasing).

This is a tough lesson here as the entry of a default occurred on three cases.  What I do find disturbing is that assuming Defendant included a general prayer clause in the application, why didn’t the Court consider the CPLR 3012(d) application as a CPLR 5015(a)(1) application?  Admittedly, the Court punished Defendant for a technicality that, at most, was just that.

Again, this Court continues to issue decisions that fly in the fact of the public policy that cases be heard on the merits absent intentional conduct.  I am thinking Albany needs to revisit CPLR 2005 because the trend of allowing the entry of default from the Second Department (Term and Division) flies in the fact of sound public policy of encouraging cases to be resolved on the merits and encourages entries of default judgments.

Court addresses lack of meritorious defense and fails to evaluate reasonable excuse June 10, 2017

Hu-Nam-Nam v Allstate Ins. Co., 2017 NY Slip Op 50685(U)(App. Term 2d Dept. 2017)

“Defendant moved by order to show cause in the Civil Court to vacate the default judgment, claiming, as an excuse for the default, that it had no record of receiving the summons and complaint, but if defendant had been served, then defendant’s failure to answer the complaint was the result of clerical error and office failure.”

“In support of its motion to vacate the default judgment, defendant was required to [*2]demonstrate both a reasonable excuse for its default and the existence of a potentially meritorious defense (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]). While plaintiff’s complaint in the Civil Court asserted that the accident at issue had occurred on June 20, 2010, defendant’s proffered evidence of a staged accident referred to a June 21, 2010 collision. Consequently, defendant failed to demonstrate that the alleged injuries did not arise out of the June 20, 2010 insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Similarly, the Supreme Court declared that defendant is not obligated to reimburse plaintiff for claims “relating to the June 21, 2010 accident.” Thus, we cannot find that the order in the declaratory judgment action, which relieves defendant of liability for claims relating to a June 21, 2010 accident, is a conclusive determination barring plaintiff’s recovery in the Civil Court for injuries sustained by its assignor in a June 20, 2010 accident. In the absence of an explanation of the discrepancy in the dates of the accident, defendant failed to demonstrate the existence of a potentially meritorious defense to the action. In view of the foregoing, it is unnecessary to consider whether defendant proffered a reasonable excuse for its default.”

Aside from a mix up in dates and Plaintiff prevailing on a case it should not have, the court ducked “reasonable excuse”.  It would be a close call on reasonable excuse because denial of receipt is usually not a reasonable excuse in the Second Department.