The failure to place evidence in proper form cannot be cured in a "supplemental opposition" December 20, 2009

“The magnetic resonance imaging (hereinafter the MRI) report of Dr. Steven Brownstein concerning McMullin’s lumbar spine, the MRI report of Dr. Dennis Rossi concerning McMullin’s cervical spine, the EMG report of Dr. Miguel Vargas, and the medical reports of Dr. Anthony Penepent were all insufficient to raise a triable issue of fact since they were unaffirmed (see Grasso v Angerami, 79 NY2d 813; Maffei v Santiago, 63 AD3d 1011; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).

The “Final Narrative” medical report of Dr. Jerome L. Greenberg, McMullin’s chiropractor, was not in affidavit form and therefore was insufficient to raise a triable issue of fact (see Kunz v Gleeson, 9 AD3d 480; Doumanis v Conzo, 265 AD2d 296). In an attempt to cure that defect, McMullin submitted Dr. Greenberg’s affidavit, along with the “Final Narrative” report, in a surreply entitled, “Supplemental Affirmation in Opposition.” This was improper, and the Supreme Court should not have [*2]considered this submission (see Flores v Stankiewicz, 35 AD3d 804).”

Was the bill overdue when the action was commenced? December 20, 2009

Omni Chiropractic, P.C. v Travelers Ins. Co. 2009 NY Slip Op 52505(U)(App. Term 2d Dept. 2009)

“A provider generally establishes its prima facie case by proof of the submission of a statutory claim form, setting forth the fact and amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the case at bar, plaintiff failed to adduce evidence establishing that payment of the no-fault benefits at issue was overdue. Contrary to plaintiff’s contention, neither the admission of its bills into evidence nor plaintiff’s prosecution of this action gives rise to an inference that the bills were overdue or dispenses with plaintiff’s obligation to establish this element of its prima facie case. Accordingly, the judgment is affirmed.”


Disqualified yet able to collect his receivables? December 20, 2009

A.B. Med. Servs., PLLC v Travelers Indem. Co. 2009 NY Slip Op 29510 (App. Term 2d Dept. 2009)

“Plaintiff, as a “professional service limited liability company” (Limited Liability Company Law § 1201 [f]), could render professional services only through individuals authorized by law to render such professional services (Limited Liability Company Law § 1204 [a]). Here, plaintiff’s sole member was Dr. Braver. Once his medical license was suspended, he became legally disqualified from practicing medicine within the state and was disqualified from continuing as a member of plaintiff (see Limited Liability Company Law § 1209). Dissolution occurred on the effective date of the suspension of Dr. Braver’s medical license since, at that point, there were no remaining members of the professional service limited liability company (see Limited Liability Company Law § 701 [a] [4] [a “limited liability company is dissolved and its affairs shall be wound up . . . at any time there are no members”]). We note that although articles of dissolution have now been filed, there is no statutory requirement that articles of dissolution be filed before commencement of the winding up process.

After dissolution, the affairs of the limited liability company are to be wound up (see Limited Liability Company Law § 703 [a]). Where a professional service limited liability company has other members remaining in the company, and continues to render professional [*3]services, a disqualified member must “sever all employment with and financial interests” in such company (Limited Liability Company Law § 1209). However, where, as here, the disqualified member was the sole member of such company, he may wind up the professional service limited liability company’s affairs by, among other things, prosecuting and/or defending an action on behalf of the professional service limited liability company (Limited Liability Company Law § 703 [b] [“the persons winding up the limited liability company’s affairs may, in the name of and for and on behalf of the limited liability company . . . prosecute and defend suits, whether civil, criminal or administrative, settle and close the limited liability company’s business”). Since the instant action could still be maintained in plaintiff’s name despite its dissolution, a stay of the proceedings, pursuant to CPLR 2201, was not warranted, and we strike such provision.”

According to the Appellate Term, it is better to lose your license and have no one else legally able to take over the affairs of the PLLC, then it is to lose your license and have a licensed individual able to run the PLLC.

A hidden gem in an a decision more recignizable for its dissent December 20, 2009

St. Vincent Med. Care, P.C. v Country-Wide Ins. Co. 2009 NY Slip Op 29508 (App. Term 2d Dept. 2009)

This case is more notable for the fact that it was decided prior to, yet published after “Infinity v. Eveready”, as well as Justice Golia’s scathing dissent regarding many of the same concerns that the Court of Appeals discussed 6 years ago in “Medical Society v. Serio.”

The issue that I am writing about is something that I am sure nobody noticed.  It involved the defendant’s failure to prima facie prove its fee schedule defense.  The court said the following:

“In opposition, defendant argued that it timely denied plaintiff’s claim seeking to recover the sum of $228.55 for services rendered on February 22, 2006 on the ground that the fee sought was in excess of the amount permitted by the workers’ compensation fee schedule because the services for which payment was sought were part of another service and, thus, were not separately reimbursable. Defendant established that it timely denied this claim”

It appears that the insurance carrier denied either muscle testing or range of motion testing based upon the worker’s compensation ground rule that prohibits compensation for certain services that are performed when an initial or follow-up evaluation is performed and paid.  While many do not know this fact, this was the fee schedule issue that was presented in Rogy Medical, P.C. v. Mercury Ins. Co., 2009 NY Slip Op 50732(U)(App. Term 2d Dept. 2009), and it did not succeed.

The failure of an assignor to appear for an EBT is not a basis for a 3126 sanction against the assignee December 20, 2009

Mia Acupuncture, P.C. v Mercury Ins. Co., 2009 NY Slip Op 29509 (App. Term 2d Dept. 2009)

In this case and the other joined cases, the insurance carrier moved to compel the deposition of the assignor under penalties of a CPLR Section 3126 sanction.  The underlying defense involved an allegation of the making of material misrepresentations when the insurance policy was procured.  The Appellate Term stated the following:

“By its terms, the CPLR 3126 (3) dismissal sanction is applicable only to the disclosure violations of parties, not nonparties (see Siegel, NY Prac § 367 [4th ed]). By virtue of their assignment of no-fault benefits to their providers, eligible injured persons have divested themselves of their interest in those benefits, and they are not parties to actions commenced by their assignees (see e.g. Leon v Martinez, 84 NY2d 83, 88 [1994]; Cardtronics, LP v St. Nicholas Beverage Discount Ctr., Inc., 8 AD3d 419, 420 [2004]; 6A NY Jur 2d, Assignments §§ 59, 85). Similarly, a provider’s party status cannot be imputed to the assignor by virtue of an assignment. Thus, since plaintiff’s assignor is not an officer, member or employee of plaintiff or otherwise under plaintiff’s control, the Civil Court properly denied the motion for sanctions as against plaintiff pursuant to CPLR 3126,  (Connors, Practice Commentaries, McKinney’s Cons Laws of [*2]NY, Book 7B, CPLR C3101:20; see Doelger, Inc. v L. Fatato, Inc., 7 AD2d 1003 [1959]; National Bank of N. Hudson v Kennedy, 223 App Div 680 [1928]…”)

What is intriguing is that there are plenty of decisions that hold otherwise, and many of these cases were presented in my briefs in MIA Acupuncture and the other joined cases.  While I won’t rewrite my brief, here are some of the cases that were presented in my briefs:   Furniture Fantasy Inc. v. Cerrone, 154 AD2d 506 (2d Dept. 1989); Allstate Ins. Co. v. Caggiano, 7 Misc.3d 135(A)(App. Term 2d Dept. 2005); Shapiro Bros. Factors v. Moskowitz, 33 NYS2d 67 (App. Term 1st Dept. 1941); Collins v. Jamestown Mut. Ins. Co., 56 Misc.2d 964 (Sup. Ct. Schoharie County 1968), aff’d, 32 AD2d 725 (3d Dept. 1969); NY & Presbyterian Hosp. v. Safeco Ins. Co., 2007 NY Slip Op 32774(u)(Sup. Ct. New York Co. 2007); Dannenberg v. General Ins. Co. of America, 198 NYS.2d 533 (Sup. Ct. NY. Co. 1960).

Perhaps a reader of this blog will take this cause up to the First Department?