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C.f. 20553 September 21, 2017

Renelique v Allstate Ins. Co., 2017 NY Slip Op 51141(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s argument, defendant demonstrated that it had properly applied the workers’ compensation fee schedule to calculate the amount due for services billed under CPT code 20553, and plaintiff failed to rebut defendant’s showing (cf. Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).”

I am unsure if this is pre or post FS amendment to code 20553.  The c.f. citation is interesting, if it is presupposes that the older version of 20553 required manipulation to achieve the desired result.

Was there a basis for detailed disclosure? September 21, 2017

Maiga Prods. Corp. v United Servs. Auto. Assn., 2017 NY Slip Op 51148(U)

Interestingly, there was no discussion in this case relative to an offer of proof regarding whether what I presume is whether corporate disclosure was established.  The following is noted:  “Furthermore, plaintiff failed to object to the discovery demands at issue within the time prescribed by CPLR 3122 (a) and CPLR 3133 (a). Thus, plaintiff is obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Plaintiff has failed to establish that the discovery demands served by defendant seek information which is palpably improper or privileged.

IME no-show – it was not mailed September 21, 2017

K.O. Med., P.C. v Mercury Cas. Co., 2017 NY Slip Op 51158(U)(App. Term 2d Dept. 2017)

I reviewed the papers.  The IME vendor changed the affidavit that was sent and inter-changed the defunct “Crosslands” with “Examworks” (the successor) entity.  There was no discussion regarding the jural relationship between the two entities.   I only realized that when I reviewed the papers after receiving the decision.  Ironically, I was not the only one to miss that salient point.  The Appellate Time signed an OSC granting us a stay of trial and granted the application motion to stay.  Neither of these are easy feats.  More finely tuned eyes saw the mistake.  I will say this: they have a good set of proof-readers at that court.  They find things all the time I never find.

“The Civil Court properly denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims that had been denied based upon plaintiff’s assignor’s failure to appear for the IMEs, as the proof submitted by defendant was not sufficient to give rise to a presumption that the IME scheduling letters at issue had been properly mailed”

The $200,000 bulge September 21, 2017

Eastman v Nash, 2017 NY Slip Op 06523 (2d Dept. 2017)

This is any defense attorney’s nigthmare.  Losing on a bulge under the significant limitation and permanent consequential prong of the no-fault law and getting his for $200,000.00

(1)  “In an action to recover damages for personal injuries, (1) the defendant Clifford C. Nash appeals, and the defendants New York Ambulette Transport, Inc., and David Fiorentino separately appeal, from a judgment of the Supreme Court, Kings County (Vaughn, J.), entered December 5, 2014, which, upon a jury verdict finding that the plaintiff sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) and that the plaintiff sustained damages in the principal sums of $150,000 for past pain and suffering and $50,000 for future pain and suffering, is in favor of the plaintiff and against them in the principal sum of $200,000, and (2) the defendant Clifford C. Nash appeals, as limited by his brief, from so much of an order of the same court dated June 17, 2015, as denied his motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages and for judgment as a matter of law, or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and excessive and for a new trial.”

(2) “ORDERED that the judgment is affirmed; and it is further,”

(3) The plaintiff allegedly was injured when a vehicle in which she was a passenger, driven by the defendant David Fiorentino and owned by the defendant New York Ambulette Transport, Inc. (hereinafter together the Ambulette defendants), collided with a vehicle driven by the defendant Clifford C. Nash. At a trial on the issue of damages, the plaintiff presented the testimony of a neurologist, who testified that he measured the range of motion of the plaintiff’s lumbar spine, and found deficits of up to 50%. The plaintiff’s neurologist also reviewed an MRI film of the [*2]plaintiff’s lumbar spine taken after the accident, and concluded that it showed no major preexisting conditions. He concluded that the accident caused a disc herniation at L4/5.”

(4)  I have to imagine the demand was near $25,000?  GEICO probably put $10,000 on the case.  When that was rejected, GEICO wanted a “control contract.”  Plaintiff probably said not on your life and  a $200,000 came from the jury’s lips to the Gecko’s ears.

3212(a) time period applies when motion is served September 12, 2017

This is a no-brainer but one Plaintiff firm out there emphasizes that the 120 day rule in CPLR 3212(a) applies to when a motion is served.  Unsurprisingly, various judges have agreed with this nonsense.  This case directly states what all know: the time to file a motion is calculated from when the motion is served.

Finally, one parenthetical remark.  Why can’t we have e-filing in the Civil Courts?  It is embarrassing when New Jersey – with its byzantine ways of doing business – has made all their courts (Superior and Superior, Special Civil) e-filing while most of New York is still stuck in the mode of 1950’s file and the pray the clerk does not lose your motion.  OCA – do something already.

Mehulic v New York Downtown Hosp., 2017 NY Slip Op 06416 (1st Dept. 2017)

“The motion court properly deemed defendant’s summary judgment motion timely because it was made (that is, served) within 60 days after the filing of the note of issue, as per the court’s directive to the parties (CPLR 2211, 3212[a]; see Corchado v City of New York, 64 AD3d 429 [1st Dept 2009]).”