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Did the address match? August 4, 2019

Brand Med. Supply, Inc. v Repwest Ins. Co., 2019 NY Slip Op 51183(U)(App. Term 2d Dept. 2019)

“However, the record demonstrates conclusively that the address to which defendant mailed the letters matched the address provided by plaintiff on its bill and by plaintiff’s assignor on the assignor’s application for no-fault benefits (NF-2). Thus, plaintiff has not demonstrated that defendant did not give the assignor proper notice of the IME”

I would sense that a mailing to the address on the bill, AOB or NF-2 would be sufficient.

A primer on 5015(a)(1) August 4, 2019

Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 2019 NY Slip Op 29225 (App. Term 2d Dept. 2019)

“As the basis for its claim of a reasonable excuse, defendant contended that it had not received process. However, absent from defendant’s moving papers was any affidavit by the person who had allegedly been served denying service or, for example, setting forth whether that person recalled having received the service in issue and, if he did, what had happened to those papers, or, if he could not recall whether he had received the papers, setting forth the usual business practices and procedures he employed upon the receipt of process. Nor was there an affidavit explaining why defendant did not proffer an affidavit from that person. Rather, defendant submitted only an affidavit by its claim representative, who merely stated that defendant did not have a record of having received process in this matter and that, if process had been received, it would have been recorded in defendant’s computer system in accordance with defendant’s business practices and procedures, which the affidavit set forth, but that no such record existed”.

The lesson here is when denying service, it will take more than the litigation representative to allege an absence of service. I think the inquiry is probably different when service is through DFS.

Causal relationship July 24, 2019

Mnatcakanova v Elliot, 2019 NY Slip Op 05772 (2d Dept. 2019)

” In opposition, the plaintiff failed to raise a triable issue of fact. Although the plaintiff submitted, inter alia, an affirmed medical report in which her expert opined that her injuries were causally connected to the accident, the evidence submitted by the plaintiff failed to address the findings of the moving defendants’ expert that the injuries to her spine and knee were degenerative in nature”

I always wonder what it is that causes the Court to go down this road. A review of the e-filed docs shows that it was the Emergency Medicine expert and the ortho expert who disputed causality.

Law Office Failure July 24, 2019

Bank of N.Y. Mellon v Faragalla, 2019 NY Slip Op 05641 (2d Dept. 2019)

It is not every day the Second Department outlines the law office failure that is deemed excusable. Sadly, this happens to many all too frequently.

“Under the circumstances presented here, the appellants set forth a reasonable excuse for their failure to appear at the centralized motion part of the Supreme Court on the return date of the plaintiff’s motion based on evidence of law office failure. In an affirmation, the appellants’ attorney explained that upon receiving the plaintiff’s motion, he directed his office’s legal assistant to note the return date of the motion on the office calendar, but that the return date had not been noted on the calendar. In addition, the appellants demonstrated a potentially meritorious defense based upon the statute of limitations”

Certified Mail and Regular Mail July 24, 2019

Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co., 2019 NY Slip Op 51148(U)(App. Term 2d Dept. 2019)

(1) “While the District Court held that defendant had failed to establish that the follow-up EUO scheduling letter had been mailed by certified mail, that finding, even if correct, would not excuse the failure of plaintiff to appear for the duly scheduled EUOs, since the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff by first-class mail had been insufficient”

(2) “Defendant further demonstrated that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the denial of claim forms, which denied the claims on the ground that plaintiff had failed to appear for the duly scheduled EUOs. Plaintiff failed to raise a triable issue of fact in opposition to defendant’s prima facie showing “