30-days to hold the IME from the receipt of the billing November 4, 2017

Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co., 2017 NY Slip Op 51461(U)(App. Term 2d Dept. 2017)

“Contrary to defendant’s argument, the Civil Court properly granted the branches of plaintiff’s motion seeking summary judgment on the first two causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that the first independent medical examination had not been scheduled to be held within 30 days of defendant’s receipt of the claims underlying those causes of action, as required by 11 NYCRR 65-3.5 (d) (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see also O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).”

This is settled law, not necessarily blog worthy.  But, this is a holding that the Appellate Division, First Department and this Court share.  Why not cite the 2 cases from the Appellate Division on this topic?  Precedent from the Appellate Division, First Department, if not contradictory to precedent from the Appellate Division, Second Department is more binding on the Appellate Term, Second Department than that Court’s own holdings.


A staged accident raises an issue of fact November 4, 2017

Easy Care Acupuncture, PC v Hartford Ins. Co., 2017 NY Slip Op 51470(U)(App. Term 1st Dept. 2017)

This first party, no-fault action is not susceptible to summary disposition. The evidentiary proof submitted by defendant-insurer in support of its motion for summary judgment, while sufficient to demonstrate that defendant had a “founded belief” that the assignor’s injuries were sustained, if at all, in a staged accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), was insufficient to demonstrate as a matter of law that the injuries did not arise out of an insured incident so as to warrant summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th and 10th Jud Dists 2009]; Capri Med., P.C. v Progressive Cas. Ins. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51158[U] [App Term, 2nd and 11th Jud Dists 2007]). In particular, the affidavit of defendant’s investigator, who relied upon certain inconsistencies among the statements of the vehicle’s three occupants regarding events of the day of the collision, rather than the events of the collision itself, and other “red flags” common in staged accident cases, raises issues of fact that should be explored at trial (see Martinez v Pioneer Transp. Corp., 48 AD3d 306 [2008]; Oliverio v Lawrence Pub. Schools, 23 AD3d 633 [2005]).

What is interesting here is that the Court stressed that events of the collision itself (if properly described in the investigator affidavit) along with the red flags could (in the right case) prima facie prove an intentional loss.

It appears the Court found that the “certain inconsistencies” and “red flags” warrant a trial.  Is there a bright line rule here?  Don’t know yet.


A business record can be anything November 4, 2017

Here is an irony. Now that the notion of a business record plays a minimal role in no-fault practice, where do we now see intense skirmishes over this item?  Mortgage Foreclosure actions and credit card collections.  Oh and here is more irony for those who have been in the no-fault game for too long.  Which Department requires a more particularized affidavit to satisfy 4518(a), and which requires watered down, conclusory assertions?    the answer is below, but you should know it already.

Bank of Am., N.A. v Brannon, 2017 NY Slip Op 07578 (1st Dept. 2017)

(1) “Furthermore, under the circumstances before us, the flaws in the notarization of Mattera’s affidavit are not fatal to plaintiff’s summary judgment motion (see Matter of Cubisino v Cohen, 47 NYS2d 952, 953-954 [Sup Ct, NY County 1944], affd 267 App Div 891 [1st Dept 1944]; Fisher v Bloomberg, 74 App Div 368, 369 [1st Dept 1902]; see also Sirico v F.G.G. Prods., Inc., 71 AD3d 429, 434 [1st Dept 2010]; Todd v Green, 122 AD3d 831, 832 [2d Dept 2014]). Pursuant to CPLR 2101(f) the court can disregard a defect in the Uniform Certificate of Acknowledgment unless a defendant has demonstrated that a substantial right of hers has been prejudiced. As no prejudice has been shown by defendant, the alleged defect should have been disregarded”

This is a bonus citation to those who enjoy arguing that irregularities in the notarization voids an affidavit.  It is not related to the substance of the post.

(2) “Furthermore, CLPR 4518(a) does not require a person to have personal knowledge of each of the facts asserted in the affidavit of merit put before the court as evidence of a defendant’s default in payment (see Citigroup v Kopelowitz, 147 AD3d 1014, 1015 [2d Dept 2017] [“There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon”]; Citibank, NA v Abrams, 144 AD3d 1212 [3d Dept 2016]). Thus, in seeking to enforce a loan, an assignee of an original lender or intermediary predecessor may use an original loan file prepared by its assignor, when it relies upon those records in the regular course of its business (see Landmark Capital Invs., Inc. v Li-Shan Wang, 94 AD3d 418 [1st Dept 2012]; see also State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1296 [3d Dept 2012], lv denied 20 NY3d 858 [2013] [records admissible “if the recipient can establish personal knowledge of the maker’s business practices and procedures, or that the records provided by the maker were incorporated into the recipient’s own records or routinely relied upon by the recipient in its business”]).”


“Here, Mattera, a representative of IFS, which has held the note and mortgage since November 2009, satisfied these standards, stating that

“I make this affidavit with personal knowledge of the facts and circumstances herein which are derived from personal knowledge and/or an independent examination of the financial books and business records made in the ordinary course of business maintained by or on behalf of Plaintiff to be an accurate and fair representation of the occurrences with which the record purports to represent as well as business records relative to the within litigation. I am familiar with the record keeping systems that Plaintiff and/or its loan servicer uses to record and create information related to the residential mortgage loans that it services, including the processes by which Plaintiff and/or its loan servicer obtains the loan information in those systems. While many of those processes are automated, where the employees of the Plaintiff and/or its servicer manually enter data relating to loans on those systems, they have personal knowledge of that information and enter it into the system at or near the time they acquired that knowledge. The records relied upon are made in the regular course of business made at or about the time the event is being recorded, systematically made for the conduct of business and are relied upon as the accurate routine reflections of the day-to-day regularly conducted business activity and so they may be relied upon as being truthful and accurate. In connection with making this affidavit, I have personally examined these business records reflecting data and information as of January 31, 2015. . . .

* * *

“I have also reviewed Plaintiffs books and records, and the payments of principal and interest made by Defendant(s) to Plaintiff. Any allegation of either full or timely payment after default is simply not substantiated by these records. All notices of default as required in the Note have been sent as prescribed in the Mortgage . . . . All time frames set forth in the notice and /or notices, as required by the Mortgage have elapsed and the Defendant(s) have not taken the necessary action to correct the default and or defaults as specified herein and in the Complaint. . . .

* * *

“The simple uncontroverted fact is that Defendant, SARAH BRANNON, was loaned and did receive $360,000.00, as is confirmed by the Mortgage and Note. Defendant did not uphold this obligation, to the detriment of Plaintiff. Defendant breached his/her obligations under the Mortgage by failing to successfully tender funds for the August 1, 2007 payment and all successive payments thereafter.”

(2b) “While the dissent finds the affidavit deficient because Mattera did not state that he was familiar with the records of GE, the Default Notice was sent by Litton, plaintiff’s agent, and Mattera stated that he was familiar with the recordkeeping systems that plaintiff and/or its loan servicer used. He also stated that he personally reviewed plaintiff’s books and records, and the payments made by defendant”

What was missing from what was a 2-3 page affidavit?  How was the affiant familiar with the antecedent entity’s record keeping?  The dissent harped on this issue and, under a technical reading of 4518(a), the dissent is correct.  The First Department accepts the legal fiction that a current entity can have personal knowledge about a prior entity and, therefore, establish the requisite personal knowledge to substantiate a business record.  But in my mind, if you are going to head down this path, take ownership of it.  Do not hide behind cases that are not directly on point.

It was not proven that the surgery was not medically necessary October 28, 2017

Surgicare Surgical Assoc. of Fair Lawn v State Farm Fire & Cas. Co., 2017 NY Slip Op 32202(U)(Krauss, J.)

Surgery denials on medical necessary grounds are probably the most difficult to substantiate in the arbitral forum.  Whether the applicant has no rebuttal, a letter of medical necessity or a full discussion, the losses are unacceptably high.  The litigation scene is a little better as the peers often go unrebutted.  Yet, this case from Civil Bronx mirrors the common arbitration award I have been reviewing the last few weeks on this project.

(1) Dr. Scarpinto did review the physical therapy notes

Dr. Scarpinto felt that surgery was not warranted based on Assignor’s medical records.  Dr. Scarpinto stated that the progress reports for Assignor’s Physical Therapy consistently described his progress as good, and she relied heavily on this fact. The reports she based this on however, are not fact filled narratives about the Assignor’s progress, but rather a series of multiple choice options circled and signed off on by a therapist. Each date has the same options circled from the first date of therapy, through the last. The five options available to circle on the report under progress were very good, good, fair or poor.

(2) Dr. Scarpinto did not review the acupuncture notes

[the acupuncture notes were not reviewed in the report]. These reports cover a period from March through July 2013 and show that Assignor continued to seek relief from the pain, and while the Acupuncture treatments were often noted as
helping, as of July 2013, Assignor continued to suffer from pain and at times perceived no relief in pain even with the treatments

(3) Dr. Scarpinto’s medical rationale for denying treatment

Dr. Sacrpinto did not appear to believe that the physical therapy was as aggressive as it could have been, noting in her peer review “(i)t is important to stress that these physical therapy treatments did not include any form of active rehabilitation which is the standard of care in the rehabilitation of a knee injury. In this case, passive modalities were provided to the claimant …(Peer Review)”.

Dr. Scarpinto also did not believe the information, provided by the Assignor and accepted by his doctors, that Assignor had no prior problems with his knee. She testified at trial that she did not believe the accident caused Assignor’s knee injury. This is also reflected in her Peer Review where she stated “(e)ssentially, the findings notes on this MRI strongly suggest long standing degenerative processes that do not appear to be directly related to the motor vehicle accident in question.”

Dr. Scarpinto then concluded that surgery was not appropriate for a degenerative knee condition and relied upon an article from a medical journal, also submitted in evidence, which specifies the limitations of surgery for a degenerative condition. The article does however state “.. (p)atients with realistic expectations of surgical outcome who specifically understand that the goal of the surgery is to diminish pain and improve function and not to cure their arthritis “ would be appropriate candidates for surgery

(4) Court disproves defense

Dr. Scarpinto was justified in basing her opinion on the assumption that Assignor was lying about previous problems with his left knee, and that the accident was not the cause of his injury, Dr. Scarpinto failed to establish through her testimony that surgery was inconsistent with generally accepted medical practices. While her testimony did establish that there are limitations as to when surgery is appropriate, the authority she relied upon specifically provides that it may be appropriate for patients with realistic expectations as to the surgery being intended to reduce pain rather than cure the degenerative condition. It is precisely due to the ongoing chronic pain that Assignor was referred for the surgery.


It is hard to tell if this decision resulted from  naivete, inappropriately stressing a lack of causal relationship defense that cannot be substantiated without the MRI films and the surgical photos discussed to the trier of the fact or the notion that lack of appropraite physical therapy treatment does not substantiate a lack of medical necessity for extremity surgery.  I cannot tell where this case fell.

But assume the doctor was asked the hypothetical as to why the acupuncture notes did not matter?  Assume the doctor was asked as to why certain types of physical therapy meet some standard (what is the standard)?  Assume the doctor was asked as to the articles, treatises or textbooks stating that the appropriateness of a certain type of PT is a condition precedent to surgery?  Would any of that have established a lack of medical necessity?

Also, inasmuch as the knee is avascular, does the literature support repairing an organ that will not heal on its own?  Will an untreated knee with a tear lead to eventual arthrocis without surgery  The decision is disturbing as a defense practitioner – mainly because I cannot grasp what happened at this bench trial.

The electrodiagnostic service was not medically appropriate October 28, 2017

Cappello v Global Liberty Ins. Co. of N.Y., 2017 NY Slip Op 51415(U)(App. Term 1st Dept. 2017)

(1) “At trial, Dr. Notabartolo testified that in his opinion the services provided by plaintiff, specifically, electromyography and nerve conduction velocity diagnostic testing, were not medically necessary because there was no indication of a “diagnostic dilemma” that would warrant such testing. The witness explained that the assignor was not neurologically deteriorating and was responding to chiropractic treatment. Dr. Notabartolo’s peer review report reaching the same conclusion was also stipulated into evidence.”

(2) “Dr. Notabartolo’s testimony, which the court expressly found credible, demonstrated a factual basis and a medical rationale for his determination that there was no medical necessity for the services at issue here (see New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 52 Misc 3d 139[A], 2016 NY Slip Op 51125[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Thus, the burden shifted to plaintiff to present his own evidence of medical necessity (see West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2nd and 11th Jud Dists 2006]). Plaintiff, however, called no witnesses to rebut defendant’s evidence. In these circumstances, plaintiff was not entitled to judgment in its favor (see All Is. [*2]Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 142[A], 2011 NY Slip Op 52227[U] [App Term, 9th and 10th Jud Dists 2011]; Specialty Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th and 10th Jud Dists 2010]). Accordingly, we reverse and direct entry of judgment in favor of defendant dismissing the complaint.”

The impetus to filing this appeal was the report from the attorney stating that the peer was credible  but Defendant did not meet its burden.  This caused me to obtain the transcript.  As this was an EMG/NCV case and the expert gave two of 3 rationales for finding the service not appropriate, it seemed like a candidate for appeal.  Except for All Is. Med Care, it looks like my brief made its way into the per curiam opinion.