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Res judicata – privity May 7, 2020

East Hampton Capital LLC v Fergusson, 2020 NY Slip Op 02718 (1st Dept. 2020)

“This action is barred by res judicata in view of the prior decision in an action involving defendant and a prior owner of the subject apartment (NLI/Lutz, LLC [NLI/Lutz]). “[U]nder res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties,” or those in privity with them, on any “claims arising out of the same transaction or series of transactions . . . , even if based upon different theories or if seeking a different remedy”

The Master Cheng April 27, 2020

“Reliance by the Civil Court and defendant upon the part of the Supreme Court’s amended declaratory judgment stating that all judgments in any actions involving plaintiff herein, Master Cheng Acupuncture, P.C., as assignee of Defou, McKenzie and Jacques “are vacated” is misplaced, as “in general, relief from a judgment may only be sought from the court which rendered it” (Chestnut Hill Real Estate v Contractors Cas. & Sur. Co., 280 AD2d 446, 446 [2001]; Bronx Med. Diagnostic, P.C. v Global Liberty Ins. of NY, 65 Misc 3d 149[A], 2019 NY Slip Op 51842[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see Campbell v Bank of Am., N.A., 155 AD3d 820 [2017]; Commissioner of Labor of State of NY v Hinman, 103 AD2d 886 [1984]). As the Supreme Court lacked the authority to vacate the judgment which had been rendered by the Civil Court in the instant action (see Campbell, 155 AD3d 820; Chestnut Hill Real Estate, 280 AD2d 446; Commissioner of Labor of State of NY, 103 AD2d 886; Bronx Med. Diagnostic, P.C., 65 Misc 3d 149[A], 2019 NY Slip Op 51842[U]), the Civil Court erred in finding that it was constrained by the Supreme Court’s judgment to grant the branch of defendant’s motion seeking to vacate so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Jocelyn Defou, Ebenior Jacques and Thahina McKenzie. Consequently, that part of the judgment should not have been vacated”

“We note that the amended declaratory judgment permanently stayed enforcement of so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Defou, Jacques and McKenzie.”

What did we learn here? A Supreme Court cannot vacate another court’s judgment, but can permanently stay its enforcement.

Election to arbitrate April 27, 2020

Ellen Sue Ginsberg, D.O., P.C. v New York City Tr. Auth., 2020 NY Slip Op 50431(U)(App. Term 2d Dept. 2020)

Once you make an election to arbitrate with respect to a Assignee/Assignor, you have given up the ability to change or “flit” forums. This election is not carrier specific if more than one carrier is responsible for first party benefits. It makes sense.

“In this action by a provider to recover assigned first-party no-fault benefits, defendant New York City Transit Authority (NYCTA) moved to dismiss the complaint insofar as asserted against it on the ground that plaintiff had previously elected to arbitrate its claims arising out of the underlying accident. Insofar as is relevant to this appeal, the District Court denied the motion on the ground that the previously arbitrated claims were against GEICO, not NYCTA.

Contrary to the determination of the District Court, since plaintiff’s claims against NYCTA are for treatment of the same assignor, for injuries arising from the same accident, plaintiff is bound [*2]by its initial election to arbitrate these claims, even though asserted against a different entity (see Roggio v Nationwide Mut. Ins. Co.,66 NY2d 260 [1985]; American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761, 763 [2013]; Cortez v Countrywide Ins. Co., 17 AD3d 508, 509 [2005]; 563 Grand Med., P.C. v Country-Wide Ins. Co., 61 Misc 3d 136[A], 2018 NY Slip Op 51556[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Cockett v Nationwide Mut. Ins. Co., 143 Misc 2d 249 [App Term, 2d Dept, 2d & 11thJud Dists 1988])”

Medical necessity? April 27, 2020

DRD Med., PC v Global Liberty Ins. Co. of N.Y, 2020 NY Slip Op 50385(U)(App. Term 1st Dept. 2020)

“We agree with Civil Court that the conflicting medical opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the physical therapy treatments underlying plaintiff’s claims”

Amazingly, this is no different than cases where the carrier has won except the affidavit of merit in this case has a bunch of verbiage but no substance

The hourly attorney fee April 27, 2020

Kamara Supplies v GEICO Gen. Ins. Co., 2020 NY Slip Op 50414(U)(App. Term 1st Dept. 2000)

The holding is simple. If the “policy issue” is not specifically enumerated on the form NF-10, there is no basis for an hourly attorney fee. A no-show or intoxication defense fits under box #4 “the injured person is excluded under policy conditions or exclusion”

The Court said it was not since IME and EUO now show are not explicitly set forth in form NF-10. The “rationale” for the restrictive ruling is set forth herein: “Construing the regulation strictly, as we must since it is in derogation of the common law rule that parties to a controversy pay their own counsel fees (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 301[a]; Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]), hourly attorneys’ fees are allowable where one of the specifically enumerated policy issues is involved, not whether one party designates a particular defense as a policy issue.”

I think a few points need to be raised. This Court over the last two years has just been getting the issues wrong. The reason is simply the lack of no-fault appeals this Court sees. This has caused a systemic distortion of the contours of these cases. And, as this case shows, the wrong decisions swing both ways.

First, to narrowly construe box #5 as “policy conditions” is wrong. No-fault law is narrowly construed against the carrier because the purpose is to afford coverage in a swift and generous fashion. Do I agree with this policy goal? Probably not. But, my beliefs are irrelevant. This is the public policy goal. That said, all challenged inferences go to the injured person and their assignor. Assuming this is a close case, the tie goes to the runner or here, the provider.

Second, the fact that we are fighting over a $70 per hour attorney fee is plainly asinine. Have we as attorneys devalued ourselves to the point that we are satisfied working for $70 an hour or $80- an hour? Moreover, if a provider had 10 cases on the calendar that day, the provider ethically would have to split his or her fee. Moreover, the paperwork is done in mass so it is hard to justify more than a few hours of time spend on doing paper work.

While I always appreciate the nuances in the law – and make no mistake – I would have pushed for hourly attorneys fees and appealed this decision if I was the Plaintiff. But on a larger scale front, this decision tells us what is wrong with the current system.

For instance, why should attorneys representing hospitals and surgeons make more money ($1000-$1360) per file than the bottom feeder attorney representing chiropractor clinics who is fighting a $40 fee schedule reduction two treatments denied on medical necessity grounds? There is zero public policy ground for what the system has become.

I understand at one point, you could make the argument that a 20% attorney fee was fair because you could encourage the provider to put all of his or her post IME or no show billings into one case and the attorney fee would be somewhat fair? But in the modern practice, we encourage surgery bills and disincentive other practitioner’s billings? While I disagree that any of this is “constitutional” or rises to a pernicious level that would warrant wholesale judicial action, I am beginning to wonder what policy goal is addressed by this regulation?