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A court system not so uniform May 16, 2009

There was an interesting decision that came out from The Long Beach City Court. Judge Smolkin, one of the two City Court Judges out here, wrote a very good opinion as to transferring cases from one lower court to another. I will not attempt to elucidate on the relevancy of this topic. In my mind, it is self evident.

The lesson to be learned from this case, in a nut shell, is that if you wish to consolidate or remove a case from one “court system” to another “court system”, you will need to commence a Supreme Court of County Court action. As to the mechanics of executing this procedure as well as its practicability and viability, I will leave these topics for another day.

People v. Rome, 2009 NY Slip Op 29200 (City Ct. Long Beach 2009)
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29200.htm

Lastly, this is a criminal case so various references are made to the CPL and the Penal Law. But, from a pragmatic standpoint, this case describes how vexatious a journey it is to change the venue of where civil cases are lodged.

Forget the insurance carriers. How about the banks? May 13, 2009

There has been a dearth of no-fault news out in the most recent decision website. This is not to say that more earth shattering or technical challenges to either virgin or somewhat settled points of law are not on the horizon. I have first-hand knowledge in telling you that some interesting decisions will be coming down the pike in the next few months. I just hope they go my way.

With that introduction, there was a case that came from the District Court Nassau County that caught my attention. It makes me think that whatever prejudices or problems any of us might have had with insurance carriers at one point, there is much worse out there

Meet Judith Lawrence.

And lastly, next time you bash an insurance company, remember that trillions of dollars went to support, in part, institutions like the Petitioner below.

Deutsche Bank Natl. Trust Co. v Oliver

2009 NY Slip Op 29197 (Dis. Ct. Nassau Co. 2009)

In an era when tent cities and new Hoovervilles are rising from the ashes of a foreclosure crisis all across America (NY Times, 3/26/09, p.1), the petitioner, Deutsche Bank National Trust Co., asserts a direct legal challenge to the Court’s equitable authority to consider a request for “more time” by a family facing a post-foreclosure eviction. For the reasons stated hereinafter, the Court rejects the challenge, and reiterates that the Court retains the power and equitable discretion to consider claims of genuine hardship in the face of an imminent eviction.”

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“Respondent, Judith Lawrence, made a timely application to this Court for “more time” by filing her request for an Order to Show Cause on March 10, 2009. Her affidavit, on a form provided by the Court, appears to ask for nothing more than “more time.” Although the Court form includes broad, boilerplate language, respecting general requests for relief from a default, it also includes language through which the applicant may seek “such other and further relief as may be just and proper” as well as language providing that, “pending the determination of this motion that the . . .warrant of eviction be stayed.”

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“Judith Lawrence’s moving affidavit presents an extremely compelling equitable case for “more time.” In simple, indeed moving terms, she states: “I need more time as my mom lives with me – she is 92 years. I am getting her in a nursing home and SS documents are delayed as she has dementia. I just need more time. Thank you.”

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“According to petitioner, the “sole equitable relief” permitted on application of a holdover occupant after a judgment of possession “is the statutory authority to grant a stay of issuance or execution of a warrant of eviction for a period not greater than six months from the date of entry of judgment,” further conditioned upon payment “for the occupation of the premises for the period of the stay and such deposit shall also include all rent unpaid by the occupant prior to the period of the stay” (citing RPAPL §753). *3 Based on the provisions cited, petitioner contends that “the relief in the Order was beyond the jurisdiction of this Court to grant except upon condition of payment of $10,000.00 [for five months’ use and occupancy] to the Owner or into the Court.

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The Court must reject the petitioner’s contentions. CPLR 2201 broadly empowers the Court to grant a stay of proceedings “in a proper case, upon such terms as may be just.” The propriety of granting a stay in any given case is limited only by “the Court’s own sense of discretion, prudence and justice”

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Considering Ms. Lawrence’s decades-long occupancy of the subject premises (dating back to 1990), the circumstances under which the premises were lost and then sold to petitioner for $500.00, respondent’s need to care for her 92 year old mother, her *4 mother’s dementia, the practical difficulties she has encountered arranging for nursing home care for her mother, and her apparently good-faith, honest request for “more time”, the Court believes it can properly afford respondent a reasonable amount of additional time to locate suitable accommodations for herself and her mother without violating petitioner’s rights or the Court’s oath of office

The first of hopefully many May 8, 2009

Bongiorno v State Farm Ins. Co.
2009 NY Slip Op 50860(U)(App. Term 2d Dept. 2009)

This case is not remarkable in any way, except according to my calculations, it is the first time a judge in Civil Richmond was overturned on a denied lack of medical necessity summary judgment motion. Actually, I think it is the first time I have seen an appeal from Civil Richmond in a no-fault case in awhile.

Defense attorneys in some courts are told that medical necessity summary judgment motions are not welcome and will be summarily denied.

My hope is that some of the holdout judges in the Second Department, who refuse to grant summary judgment to a carrier’s lack of medical necessity motion-when same is not rebutted with any affirmative medical proof- will now follow suit.

Time will tell, as will more appeals should the rule of law not be followed.

Note – this reference does not apply to the First Department – as of now

A minus v. Mercury May 2, 2009

I can’t comment much on this matter, but if you read the record on appeal in this matter and the record on appeal in the matter of CPT v. NYCM, then you will see that the Appellate Term, First Department, is having trouble figuring out how to resolve an issue that the Appellate Term, Second Department resolved 2 years ago in A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131(A)(App. Term 2d Dept. 2007).

Lastly, this case only gives a Plaintiff more of a reason to file his or her cases in the Bronx.

2106 again… April 30, 2009

In the world of appellate practice, there are three types of appeals you can take up. The first type of appeal involves the instance where you know you are going to lose, but there is some overriding interest which compels you to file and perfect the appeal. I think this is usually relegated to the criminal side of the arena or issues involving large monetary awards that need to be challenged. These are the shot in the dark appeals. In order to win this type of appeal, spin around three times, throw a dart, and see if you can hit the bulls eye.

The second type of appeal you could take up is one where you believe the law should be a certain way, and there is case law or other sources of law out there, which if favorably construed, could support your position. This is also the category of appeal where I think if you repeat yourself a few thousand times, you might get heard. This is probably where the Dan Medical line of cases came from. I also believe that this is how the “AB v. Liberty” line of cases and the “old” Appellate Term, Fogel line of cases eventually died a well deserved death at the Appellate Division.

And then there is the third type of appeal. This is the one where the law is established, the facts are properly presented to the lower court and, for whatever reason, the lower court chooses to depart from settled precedent.

And now…
St. Vincent Med. Care, P.C. v Mercury Cas. Co., 2009 NY Slip Op 50810(U)(App. Term 2d Dept. 2009)
http://www.nycourts.gov/reporter/3dseries/2009/2009_50810.htm

In this case, Defendant moved for summary judgment based upon a prima facie showing that the contested services lacked medical necessity. There was approximately $6,000 in disputed billing, involving all types of modalities of treatment. The fourth cause of action, which was not disputed, involved a $71.49 office visit, if memory serves correct.

Plaintiff cross-moved and opposed the underlying summary judgment. Plaintiff, in opposition to Defendant’s motion argued that: (Issue #1) a business record predicate was not set forth in Defendant’s moving papers; (Issue #2) the denials were not timely and properly mailed; and (Issue #3) the services were medically necessary. The Appellate Term, for the first time, commented on Issue #1, finding that Defendant’s papers set forth a business record predicate for the admission of the denials into evidence. Those who have followed the law know that the Appellate Division, Second Department, has ruled on this issue, albeit the last time in 2006 and the first time 2004.

Issue #2 was quickly disposed of since the affidavit that was presented has previously been held to adequately describe the mailing procedure.

Issue #3 is the reason this case went up the appellate ladder. Plaintiff, in her opposition papers, presented an affirmation of Dr. Zakharov. Upon a search of the Office of Professional Responsibility (OPR) website, it was learned that Dr. Zakharov was the President of this corporation. CPLR 2106 expressly disallows a party to “affirm” to the truth of matters set forth in the litigation, and at least three cases previously held that a member of a business organization who is a party to the litigation may not use the CPLR 2106 affirmation process.

A proper objection along with the printout of the OPR site were set forth in Defendant’s reply papers. Incidentally, some have argued (and there was merit to this argument) that the OPR record needed to be certified. CPLR 4518(c). I think we can all agree that after Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. 2009 NY Slip Op 00351 (2d Dept 2009), this objection is palpably without merit.

Plaintiff’s papers were properly excluded. Having failed to raise a triable issue of fact, summary judgment was awarded to Defendant.