EUO no show July 20, 2020

Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 2020 NY Slip Op 03876 (1st Dept. 2020)

“The claimants’ failure to subscribe and return the transcripts of their examinations under oath (EUOs) violated a condition precedent to coverage and warranted denial of the claims (see Hereford Ins. Co. v Forest Hills Med., P.C., 172 AD3d 567 [1st Dept 2019]). This is so notwithstanding plaintiff’s failure to present proof of proper delivery of the denials (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

Plaintiff is entitled to summary judgment on the additional ground that defendants failed to appear at two scheduled EUOs (see Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600 [1st Dept 2018]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468 [1st Dept 2016], appeal withdrawn 29 NY3d 995 [2017]). Considering the brevity of the delay and JS’s ultimate failure to appear, we find that plaintiff’s “one-day tardiness in issuing its follow-up request for the EUO scheduled for” JS was “a technical defect excusable under 11 NYCRR 65-3.5(p)” (Z.M.S. & Y. Acupuncture, P.C. v Geico Gen. Ins. Co., 56 Misc 3d 926, 930 [Civ Ct, Kings County 2017]).”

65-3.5(p) – was this what DFS mean?

Injunction scored on the biggest No-Fault Player out there July 20, 2020

Geico v. Moshe, 20-cv-1098 (EDNY 2020)

This probably has to be every medical practice’s worst nightmare. Provide services, send bills to the largest insurance payor, end up with a Rico and find yourself hit with a preliminary injunction. I think what makes it that much worse is that all these cases would settle on average for “85/50” or some variant thereof if the you take 2 I take 1 game is played.

The opinion is short, sweet and to the point

“(1) Yan Moshe (Moshe) has been sued seven times by insurers alleging he previously engaged in similar fraudulent billing activities.

(2) Moshe conspired with individuals, including defendants Leonid Shapiro and Nizar Kifaieh, to run his facilities on paper, while Moshe controlled the facilities without a medical degree. The complaint supports these allegations with specific examples and Kifaieh’s testimony from a prior litigation that he did not pay for ownership of Premier and Moshe provided him with equipment.

(3) Moshe’s facilities, particularly those directed by Shapiro, were repeatedly cited by the New Jersey Department of Health for regulatory violations. In fact, one facility was temporarily closed due to unsanitary conditions.

(4) Defendants unlawfully referred patients to Moshe’s facilities for unnecessary services often without disclosing Moshe’s interest. Defendants subsequently billed GEICO for these unnecessary services.

(5) Defendants prescribed identical treatment for people involved in a single accident despite their varying ages and health conditions. The complaint provides 10 detailed examples of when this occurred.

(6) Regina and Citimedical billed GEICO for services provided in New Jersey even though Citimedical could not lawfully provide services outside New York. The complaint provides 15 detailed examples of when this occurred.

(7) Moshe and Hudson Regional unlawfully requested reimbursement for facility fees that exceeded the limits set by the NJ fee schedule.

(8) Defendants submitted bills purporting that they were in compliance with all laws and regulations while engaging in the above activities.”

What this shows is the power of the Federal Rico statute. There is nothing within the New York State arsenal of common law remedies that comes anywhere close. As a reminder, NY does not have a Civil Rico statute (American Transit’s “DJ’s” appear to believe otherwise).

A very interesting 5102(d) case July 20, 2020

Guzman v Cruz, 2020 NY Slip Op 03980 (1st Dept. 2020)

“In opposition, plaintiff raised issues of fact as to his cervical spine claim through the affirmed report of his radiologist, who found multiple bulging discs, and his treating physician, who provided evidence of limited range of motion about a week after the accident and four years later and opined that the cervical spine conditions were causally related to the accident. Since plaintiff’s own medical records did not reveal any degenerative conditions in his spine, he was not required to submit evidence from a medical expert detailing why degenerative conditions were not the cause of the reported symptoms”


“Although plaintiff did not initially complain to his doctor about his shoulder, he testified that his shoulder was bruised after the accident and then sought treatment within a month when pain developed. Such delay does not require a finding of lack of a causal connection, but rather presents an issue of fact”

Conditional Order of preclusion substitutes for willfulness July 20, 2020

Center Sheet Metal v Cannon Design, Inc., 2020 NY Slip Op 04010 (1st Dept. 2020)

“Plaintiffs violated the court’s third conditional order of preclusion by failing to produce a witness for Aspen’s scheduled deposition, and failed to demonstrate either a reasonable excuse for their failure to comply or a meritorious claim.”

Contrary to plaintiffs’ argument, the court was not required to find that their failure to comply was willful (Keller v Merchant Capital Portfolios, LLC, 103 AD3d 532, 533 [1st Dept 2013]).

Motion for leave to enter a default insufficient June 30, 2020

Freedom Chiropractic, P.C. v 21st Century Ins. Co., 2020 NY Slip Op 50686(U)(App. Term 2d Dept. 2020)

“As plaintiff acknowledges on appeal, defendant argued that defendant “did not receive at least 13 days’ notice [of plaintiff’s motion for leave to enter a default judgment], the minimum required for motions served by regular mail (see CPLR 2103 [b] [2]; 2214 [b]). “

My question here is since a party in default (unless they previously appeared) is not legally entitled to a notice of an application for a default (whether made to the court or clerk), is this decision correct?

Guarantee the argument is not preserved and the Court did nit have to reach it.