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Interest. March 7, 2022

Pro-Med Med., P.C. v MVAIC, 2022 NY Slip Op 50135(U)(App. Term 2d Dept. 2022)

“By order to show cause dated May 9, 2018, defendant moved, pursuant to CPLR 5021 (a) (2), for an order directing the clerk to enter a satisfaction of the $19,893.34 judgment, as the “judgment has been fully paid and satisfied.” In the alternative, defendant moved to compel plaintiff to file a satisfaction of judgment. Plaintiff opposed the motion. By order entered September 21, 2018, the Civil Court denied defendant’s motion.

Postjudgment interest accrues at the rate of 2% per month in a no-fault action, as “Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h), which [provide] specific [interest] directives, supersede the interest provisions contained in CPLR 5004, the more general statute” (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 156 [2021]). Consequently, defendant’s contention that the postjudgment interest accrued at the rate of 9% per year pursuant to CPLR 5004 is without merit (see id.). Additionally, since former 11 NYCRR 65.15 (h) was still in effect at the time of the underlying accident in 2001, the 2% per month interest rate is compounded (see id.).”

9% per year v. 2% per month…. I think this was a million dollar case.

Staged accident fraud March 7, 2022

State Farm Mut. Auto. Ins. Co. v Pace, 2022 NY Slip Op 30391(U)(Sup. Ct. Kings Co. 2022)

“With regard to State Farm’s first, second, and third causes of action, parties generally are not entitled to recover no-fault benefits for damages resulting from intentional events (Matter of Allstate Ins. Co. v Massre, 14 AD3d 610, 61 I [2d Dept 2005], citing State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 490-91 [2d Dept 2003]). When determining if a collision was intentional, the court looks to circumstantial factors. Common considerations include the age of the policy at the time of the loss, the value and age of the car involved, cancellation of the policy shortly thereafter, interrelationships among the parties involved, inconsistencies in testimony regarding the circumstances of the subject collision, and inconsistencies in the identities of the individuals involved (PDG Psychological, P.C. v Stale Farm Ins. Co., 12 Misc 3d 1183[A], 2006 NY Slip Op 51398[U] *6 [Civ Ct, Kings County 2006]; VS. Med. Services, P.C. v Allstate Ins. Co., 11 Misc 3d 334, 343 [Civ Ct, Kings County 2006]; Matter of Progressive County Mut. ins. Co. by McNeil, 4 Misc 3d 1022[A], 2004 NY Slip Op 50998[U], *2 [Sup Ct, Nassau County 2004])

Ms. Rivera states in her affidavit that the policy was thirty-three days old, and provides a copy of the subject policy (Rivera affirmation at ,i 16). Ms. Rivera also notes in her affidavit the following testimony from the EUOs of Ms. Conway and Ms. Chandler: Ms. Conway claims to have known all occupants of the vehicle for several years prior to the accident (Conway EUO at 32). Conversely, Ms. Chandler denies having known any of them until the day of the crash (Chandler EUO at 13 ). Ms. Conway claims the group had planned to go to the theater on Court Street that night, but they had not picked a movie, did not know the show times, and did not know that the theater would be closed by the time they arrived (Conway EUO at 18-20). Ms. Conway claims the group had not seen or spoken to each other for three months prior to the day of the crash (Conway EUO at 32). Ms. Conway claims the accident occurred in the roundabout on Grand Army Plaza (Conway EUO at 21 ). Ms. Chandler, however, denies the accident occurred in the roundabout (Chandler EUO at 22). Ms. Conway claims the car was moved to a service lane immediately following the collision (Conway EUO at 26. Ms. Chandler claims the car remained in the street immediately following the collision (Chandler EUO at 24). Accordingly, State Farm has sufficiently established the facts of its first, second, and third causes of action”

New policy, inconsistent statements. Fraud.

5102(d) and pain February 19, 2022

Gaughan v Censeo Health, LLC, 2022 NY Slip Op 00587 (4th Dept. 2022)

“Plaintiff met his initial burden of establishing that he sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories by submitting the affidavit of his expert, who provided evidence that the range of motion of plaintiff’s spine was limited up to 50% when compared to a normal range of motion and that those limitations were permanent (cf. Mutombo v Certified Document Destruction & Recycling, Inc., 193 AD3d 1432, 1433-1434 [4th Dept 2021]; see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002], rearg denied 98 NY2d 728 [2002]). In addition, the expert opined that the injuries to plaintiff’s spine were caused by the motor vehicle accident inasmuch as a review of plaintiff’s medical records revealed that plaintiff had made no similar complaints of pain regarding his spine prior to the accident (cf. Grier v Mosey, 148 AD3d 1818, 1820 [4th Dept 2017]). In opposition, defendants failed to raise an issue of fact through the affidavit of their expert physician, who found similar limitations to plaintiff’s range of motion (see Maurer v Colton [appeal No. 3], 180 AD3d 1371, 1373-1374 [4th Dept 2020]; Clark v Boorman, 132 AD3d 1323, 1325 [4th Dept 2015]). Although the defense expert attributed plaintiff’s injuries to age-related degeneration, the expert failed to account for the absence of pain in plaintiff’s spine prior to the accident. Thus, the expert’s opinion “was conclusory and therefore ‘insufficient to establish that plaintiff’s pain might be . . . unrelated to the accident’ ” (Ashquabe v McConnell, 46 AD3d 1419, 1419 [4th Dept 2007]).”

I really love the “no prior pain” line of cases. It is akin to the prior asymptomatic injury that became symptomatic. I do enjoy the discussion.

“I think Unitrin was wrongly decided” February 18, 2022

American Tr. Ins. Co. v Acosta, 2022 NY Slip Op 01097 (1st Dept. 2022)

(Concurrence)

“Insofar as the majority opinion is premised on our precedent in Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]), I am constrained to concur; however, I favor the reasoning of our sister departments that the failure to appear for a medical examination (ME) constitutes a breach of policy term and not a failure of condition precedent that would entitle the insurer to void the policy ab initio. The defense of failure to appear for an ME is more akin to a policy exclusion than a lack of coverage in the first instance such as where the policy had terminated prior to the accident or the injuries were not caused by the covered accident (see e.g. Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [4th Dept 2018]).”

When carriers continuously throw garbage into the system and fail to oppose an appeal, this is the outcome. The majority opinion said

“defendants argued in opposition to the summary judgment motion, because it is impossible to discern from the record whether plaintiff complied with the requisite time frames requiring it to request MEs within 15 days of receiving defendants’ claims and scheduling the MEs within 30 days of receiving their claims (11 NYCRR 65-3.5[b],[d] ), plaintiff failed to establish its prima facie entitlement to summary judgment (Longevity Med. Supply, 131 AD3d at 841-842;)”

Well, well, well…

A good third party vendor can prove mailing February 18, 2022

Bank of Am., N.A. v Bloom, 2022 NY Slip Op 00839 (2d Dept. 2022)

“In order to demonstrate compliance with RPAPL 1304, a plaintiff must provide proof of the actual mailing of the notice required by the statute, or proof of a standard office mailing procedure, sworn to by someone with personal knowledge of the procedure (see Federal Natl. Mtge. Assn. v Davis, 180 AD3d 1004, 1005; Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 21). Here, the plaintiff established a certified mailing of the notice by submitting a copy of the notice containing a 20-digit United States Postal Service (hereinafter USPS) tracking number, along with a copy of a certified mail return receipt, indicating that the notice was received by the defendant on December 29, 2009. Moreover, the plaintiff established a mailing of the notice by first-class mail by submitting a copy of the notice with a 10-digit USPS tracking number, along with a “TrackRight” report generated by Walz Group, LLC (hereinafter Walz), the entity that mailed the notices on behalf of the plaintiff, which indicated that the notice was mailed by first-class mail. Contrary to the Supreme Court’s determination and the defendant’s contention, the plaintiff laid a proper foundation for the admission of the TrackRight report, evidencing a first-class mailing, through Chromiak’s testimony that he was familiar with the mailing practices and procedures of Walz (cf. U.S. Bank, N.A. v Onuogu, 188 AD3d 756, 757).”