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Summary judgment denied based upon the failure to plead the "emergency doctrine" as an affirmative defense April 3, 2010

Franco v G. Michael Cab Corp., 2010 NY Slip Op 02744 (2d Dept. 2010)

“The defendant could not properly rely on the emergency doctrine in support of its motion. Since the defendant failed to plead the emergency doctrine as an affirmative defense in its answer, and the facts relating to the emergency were known only to the defendant and Badrane, the motion raised new issues of fact not appearing on the face of the pleadings, which resulted in unfair surprise to the plaintiff.”

This is interesting because the trend in the case law has been to either excuse unpleaded affirmative defenses or to almost always grant a motion to amend the complaint to plead the affirmative defense, provided the proposed affirmative defense has merit.  There was a no-fault case a year ago – its name escapes me now – where the Appellate Term, Second Department held, point blank, that the failure to plead an affirmative defense or move to amend the complaint to include the proposed affirmative defense was of no moment.

Proof of actually mailing an item certified mail RRR is sufficient to prima facie demonstrate proper mailing of an item April 3, 2010

Dune Deck Owners Corp. v J J & P Assoc. Corp., 2010 NY Slip Op 02739 (2d Dept. 2010)

“Here, the plaintiff established proof of actual mailing through the testimony of its vice-president, who personally addressed and mailed the required notices to the defendants via certified mail, return receipt requested (cf. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 547-548; Tracy v William Penn Life Ins. Co. of N.Y., 234 AD2d 745, 748). The defendants failed to rebut this presumption.”

I never saw a case that involved actual mailing of an item via certified mail, RRR, when there was no proof correlating the certified mail card with the certified mail number.

NY PIP at the US Supreme Court – not as exciting as you think April 2, 2010

Shady Grove v. Allstate

Dave Gottlieb has posted extensively on this case, and has some good insights on it.  This case represents a course in Civil Procedure and its effects on no-fault are minimal.  But I will sort this out for the non attorneys who read this, or the attorneys that forgot first year Civil Procedure in law school.

Shady Grove apparently filed a class action lawsuit in Federal court, arguing that Allsate failed to pay interest on numerous cases.  The action was based solely upon New York no-fault law.  Therefore, the federal court would only have jurisdiction to entertain this matter if there was diversity between any of the parties and $5 million in dispute. According to New York State law and, as is relevant to this case, a class action may not be brought when the damages solely consist of a penalty.  Statutory interest and the resulting attorney fees are clearly penalties.  Under the Federal Rules of Civil Procedure, a class action can be brought irrespective of whether the object of the action is to collect a penalty.  So, you would think that since this case was brought in Federal court, the Federal Rules ipso facto would apply.  This is not necessarily true.

In the last century, the Supreme Court held in the Erie and Hannah line of cases that where State substantive law applies, a Federal Court in a diversity matter must apply the state substantive law.  The Court, however, held that where the difference between state law and federal law only applies procedural rules, the Federal procedural rules would apply.

The question then is whether the New York class action statute is procedural or substantive.  The Second Circuit observed that it is, for the most part, hybrid and held that it is substantive to the extent that Shady Grove could not bring this action in Federal Court since it could not be brought in State Court.

The Supreme Court in a very divided opinion reversed the Second Circuit and held, as far as I am concerned, that the dispute is procedural.  Therefore, since the action may be brought in Federal Court in accordance with the Federal Rules of Civil Procedure, the Second Circuit was incorrect in allowing for this lawsuit’s dismissal.

This case now allows for massive forum shopping, for the minimal amount of class action litigation that no-fault has spawned.  However, it opens up the door to perhaps more class action lawsuits and the massive discovery, which is always advantageous to the plaintiff class members in this type of litigation.  Perhaps, we have entered a new era in no-fault litigation?  I do not think so, but as to issues involving interest and attorney fee disputes on a more global level, it is definitely possible.

A very sloppy set of motion papers costs Liberty over $10,000 March 31, 2010

Westchester Med. Ctr. v Liberty Mut. Ins. Co. 2010 NY Slip Op 30649(u)(Sup. Ct. Nassau Co.)

This case involved a non-coverage defense – actually, two of them.  Both of these defenses were quite viable, I tend to believe.  The first defense asserted was that Liberty was a TPA for a bus company.  The second defense was that the policy was exhausted.  The problem with this case is that the defendants did not do their homework.  Liberty failed to plead the appropriate affirmative defenses, failed to include a copy of the insurance policy, including the declarations page, when the defense involved the exhaustion  of an insurance policy and the defendant could not marshal evidence from someone at the bus company explaining their status as a self insured entity.  In a court that reads the parties’ papers, you need to be a little more discerning with what you submit, lest you  find yourself on the receiving end of this type of a decision.

Those promised framed issue hearings on “stamped signature” cases were quite short lived March 26, 2010

Amercure Acupuncture, P.C. v GEICO Ins. Co., 2010 NY Slip Op 20098 (App. Term 2d Dept. 2010)
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2008-2041 Q C.

Opinion withdrawn from publication in the Miscellaneous Reports at the direction of the court.

I think Gottlieb at NFP captured this case before it was assassinated.

In short, the Appellate Term proposed framed issue hearings on whether a signature was stamped, faxed or affixed in a non-holographic manner, in order to resolve this issue when raised in a summary judgment motion.  I suspect someone at OCA or some of the administrative judges placed a few phone calls to the panel of Justices on this case, and now this proposed remedy is void ab initio.  In my opinion, the holding of a framed issue hearing is not the worst the idea in the world.  Why don’t they have a designated JHO part, like they have in Supreme Kings for these types of hearings?

As the law stands, based upon the last published pronouncement of the Appellate Term, the objector must present some evidence to show that the affixed signature is stamped in order to defeat a motion on this ground.

_____________________________________________________________________________________________________

FURTHER RESEARCH REVEALS THAT THIS CASE HAS NOT BEEN REMOVED FROM WESTLAW (YET).  Here it is:

Amercure Acupuncture, P.C. v. Geico Ins. Co., 2010 N.Y. Slip Op. 20098 March 16, 2010 (Approx. 1 page)

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.
Amercure Acupuncture, P.C. as assignee of WILLIAMS STACEONA, Respondent,
v.
GEICO Ins. Co., Appellant.

2008-2041 Q C.Supreme Court of the State of New York Appellate Term: 2nd, 11th And 13th Judicial Districts

Decided on March 16, 2010

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 3, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 3, 2008 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $475.20.
OPINION OF THE COURT

ORDERED that the judgment is reversed without costs, the order entered October 3, 2008 is vacated, the branches of plaintiff’s motion seeking summary
judgment upon the first, second and third causes of action are denied, the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, second
and third causes of action are granted and the matter is remitted to the Civil Court for a hearing in accordance herewith and a new determination thereafter upon the branch of the motion and the branch of the cross motion, each seeking summary judgment upon the fourth cause of action.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that, with respect to the acupuncture services at issue in the first, second and third causes of action, it had timely paid plaintiff the amount to which plaintiff was entitled for such acupuncture services pursuant to the fee schedule applicable to chiropractors who render the same services, and that it had timely denied the amounts sought in excess of the fee schedule for the services included in these causes of action. Defendant further sought summary judgment dismissing plaintiff’s fourth cause of action on the ground of lack of medical necessity. The Civil Court granted plaintiff’s motion for summary judgment, determining that defendant had failed to establish that it had timely denied plaintiff’s claims. Defendant appealed from the order granting plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).
Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established *2 that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we turn to defendant’s opposition papers to determine whether defendant demonstrated the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
In opposition to plaintiff’s motion and in support of the cross motion, defendant established that it had timely mailed its denial of claim forms, by submitting an affidavit of an employee with knowledge of defendant’s standard office practices or procedures designed to ensure that the items were properly addressed and mailed (see e.g. St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As defendant further demonstrated that it had timely paid the acupuncture claims at issue in the first, second and third causes of action in accordance with the fee schedule applicable to chiropractors who render the same services, defendant is entitled to summary judgment dismissing those causes of action (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).
In opposition to the branch of plaintiff’s motion seeking summary judgment upon the fourth cause of action and in support of the branch of its cross motion seeking summary judgment upon that cause of action, defendant submitted an “affirmed” report by its doctor who had performed an independent medical examination (IME) of plaintiff’s assignor, to establish that the acupuncture services rendered thereafter by plaintiff were not medically necessary. However, plaintiff alleged, before the Civil Court and on appeal, that the IME doctor’s “affirmed” report is not admissible because it impermissibly bears a stamped facsimile of the doctor’s signature. We recognize that such an allegation, when properly asserted, ordinarily raises an issue of fact that cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). While the branch of plaintiff’s motion and the branch of defendant’s cross motion, each seeking summary judgment on the fourth cause of action, could simply be denied due to the existence of such issue of fact, we are of the opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the signature upon defendant’s doctor’s “affirmed” IME report. Such hearing will allow the court to determine whether the report was in admissible form (see also Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, enable the court to resolve the remaining branch of the motion and the remaining branch of the cross motion on their merits.
Accordingly, the judgment is reversed, the order entered October 3, 2008 is vacated, the branches of plaintiff’s motion seeking summary judgment upon the first, second and third causes of action are denied, the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, second and third causes of action are granted, and the matter is *3 remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine the admissibility of the IME report and for a new
determination thereafter of the branch of the motion and the branch of the cross motion, each seeking summary judgment upon the fourth cause of action.
Rios, J.P., Pesce and Steinhardt, JJ., concur.