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An interesting MVAIC issue October 26, 2019

I usually do not focus or discuss too many MVAIC cases, mainly because they do not terribly interest me and the Second Department has held that every distinctive issue involving MVAIC is either a coverage defense or an additional element of Plaintiff’s prima facie case. The First Department holds that every “condition precedent” is a defense and does not require remedies to be exhausted as a condition precedent. Pardon me for not focusing on MVAIC issues – do not think less of me.

This case interested me due to one sentence:

“The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is ‘a condition precedent to the right to apply for payment from [MVAIC].’ Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a ‘covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC” (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [citation omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). As plaintiff did not establish that such an affidavit had been submitted to MVAIC, plaintiff failed to establish its prima facie case (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]). In light of the foregoing, we reach no other issue.”

Same case in Civil Bronx: Affirmed with $30 costs. By the way, we have seen the bolded comment before in prior cases. But I think the Court is wrong here. What do I know?

Keep beating a dead horse… It is not coming back to life October 26, 2019

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2019 NY Slip Op 51684(U)(App. Term 2d Dept. 2019)

“Furthermore, as this court has repeatedly stated, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [*2][provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]….”

If you feel the Court is wrong and you know what the outcome will be, you are best to file an action is a different Department or in a federal court and hope for a different outcome. This appears to be a foolish use of resources in everyone’s part.

Sever it October 26, 2019

Well, I lost five of these recently I think. I stopped keeping track. What you may not know is that I sought leave to appeal to the Second Department of the last three cases. Leave was denied. But, I think a phone call was made to someone.

Case #1:

Westchester Radiology & Imaging, P.C. v GEICO Cas. Co., 2019 NY Slip Op 51703(U)(App. Term 2d Dept. 2019)

“The complaint alleges that the claims arose out of six separate accidents which occurred on six different dates and the denial of claim forms indicate that the claims at issue were denied on the ground of lack of medical necessity, an issue which is inherently distinct to each assignor. Therefore, there are likely to be few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the causes of action should have been granted (see Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2012]). “

In this instance, same MVA is not even relevant. The claims at issue were denied on the ground of lack of medical necessity, an issue which is inherently distinct to each assignor.”

Case #2:

Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co., 2019 NY Slip Op 51704(U)(App. Term 2d Dept. 2019)

” The complaint alleges that the claims arose out of four separate accidents which occurred on four different dates. The facts relating to each claim are therefore likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the causes of action should have been granted (see Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). “

Here, severance is based on the traditional notion: multiple accidents, therefore, severance is appropriate.

Case #3:

Arcadia Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51707(U)(App. Term 2d Dept. 2019)

“The complaint alleges that the claims arose out of three separate accidents which occurred on three different dates. A review of the answer, denial of claim forms, and explanations of review pertaining to the claims at issue, reflects that facts relating to each claim are likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the first cause of action from the remaining causes of action should have been granted (see Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). “

The answer, denials and EOBs show that few common issues of fact will exist. Severance granted.

Case #4:

Clarke v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51708(U)(App. Term 2d Dept. 2019)

“The complaint alleges that the claims arose out of two separate accidents which occurred on two different dates. A review of the answer, denial of claim forms, and explanations of review pertaining to the claims at issue, reflects that the facts relating to each claim are likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the first cause of action from the remaining cause of action should have been granted (see Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Two accidents, two Assignors, two different proofs. Severance is appropriate.

IME no-shows sustained October 26, 2019

Valdan Acupuncture, P.C. v Global Liberty Ins. Co. of NY, 2019 NY Slip Op 51705(U)(App. Term 2d Dept. 2019)

” Defendant established that initial and follow-up letters scheduling IMEs had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claim seeking to recover the sum of $1,224.22 had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to the branch of defendant’s cross motion seeking summary judgment dismissing, on the ground that plaintiff’s assignor had failed to appear for duly scheduled IME “

Tyorkin v Global Liberty Ins., 2019 NY Slip Op 51689(U)(App. Term 2d Dept. 2019)

“[d]efendant submitted an affidavit by a supervisor employed by Omnimed Evaluation Services, which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to [*2]coverage (id. at 722). As defendant’s cross motion further established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims on that ground…”

Compare to: Satya Drug Corp. v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51505(U)(App. Term 1st Dept. 2019)

It should be noted that the Appellate Division, First Department as I have seen does not follow the “Metro 8” contemporaneous rule. Thus, while I am biased here, the Second Department got it right.

Lidas Med. Supply, Inc. v Global Liberty Ins., 2019 NY Slip Op 51688(U)(App. Term 2d Dept. 2019)

” The record demonstrates conclusively that while the address to which defendant mailed the letters did not include an apartment number, the address matched the one provided by plaintiff’s assignor on the assignor’s sworn application for no-fault benefits (NF-2) and on the assignor’s sworn notice of intention to make claim form which was submitted to defendant. Consequently, defendant established that the address to which the IME scheduling letters were mailed was proper”

We have seen recent cases where the Appellate Term, Second Department has followed the Appellate Division First Department rule requiring the provider to show the address is wrong in the first instance. The safer route is always to provide corroboration of the address and the attorney rep. letter. The IME letters should always have the name and address of the EIP and the attorney on all letters.

NJ law should apply October 25, 2019

Dassa Orthopedic Med. Servs. PC v Amica Mut. Ins. Co., 2019 NY Slip Op 51664(U)(Civ. Ct. Kings Co. 2019)

“The police report indicates that the subject accident occurred in New Jersey between a pedestrian who resided in New York and a New Jersey driver driving a vehicle registered in New Jersey. “

“In the case at bar, defendant submits no admissible evidence to establish its policy does not cover the subject incident. Ms. Outhouse’s affidavit states defendant’s policy does not cover the subject incident based on her review of the claim file. However, she does not specify what records she reviewed, including whether she even reviewed defendant’s subject insurance policy at issue. Ms. Outhouse further makes no attempt to establish the foundation of any reviewed records nor proffer the records for the court’s review. In fact, Ms. Outhouse does not even state whether she reviewed defendant’s subject insurance policy, nor does she submit a copy in support of defendant’s motion. “

[Defendant loses motion]

So a few questions. 1) Why wasn’t the dec page (in admissible form) presented? 2) Why wasn’t the policy (in admissible form) presented? 3) Why didn’t Defendant move to compel arbitration under NJ law?

These are the things I do not understand. Amica is a good insurance company; they deserve better.