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Standing May 9, 2020

Allstate Ins. Co. v Kapeleris, 2020 NY Slip Op 02645 (2d Dept. 2020)

The Defendant, Stacey Kapeleris is one of the nicest people you could meet. The first time she met me, she told me I was not what she thought I would be. I guess I did not wear a tie that day and probably was not dressed like a typical lawyer. This is perhaps why I had trouble working in various law firms. I digressed.

But to the point, Stacey was legitimately injured in a serious car accident. For the last four years, I have had the hardest time fathoming why the Plaintiff has taken a scorch the earth approach to her. It is one thing when the adverse party is an MUA provider, a back brace peddler, a useless compound cream distributor (Voltaron gel works just as well) or a surgeon who is operating for the sake of operating. I have no sympathy to these providers and have gone the distance many times with those providers with mixed results. But, I was justified in what I did.

But this is a real life case, and to tell you I am beyond disgusted would be an understatement. Just look at the docket if you want any further insight. While this will be a non-jury trial and I would not inflame any potential jurors by commenting further, my 17 years of practice compels me to say nothing more as I am very sure this will make one more trip to Brooklyn.

The holding from this case is extremely significant as it questions what I have always understood as standing by estoppel. It also tells an injured person how to retake possession of a bill when the provider does not cooperate.

Now did I want to be the one that made this law? Nope. But as an advocate, I end up taking positions I would normally never think I would take.

Also didn’t someone once say bad facts make bad law? Here are snippets from the case.

(1) “An accident victim may assign his or her no-fault claim to a medical provider who has provided a medical service (see 11 NYCRR 65-3.11; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 764-765). The no-fault regulations provide that assignments must be made on the prescribed statutory forms (see 11 NYCRR 65-3.11[b][2]; John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d 59, 61 [App Term, 2d Dept]). The prescribed language requires the assignee (treatment provider) to certify that “[t]hey have not received any payment from or on behalf of the assignor [patient] and shall not pursue payment directly from the assignor for services provided by said assignee for injuries sustained due to the [subject] motor vehicle accident” (11 NYCRR R Appendix 13 [NYS Forms NF-3, NF-4, NF-5, NF-AOB]; see John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d at 60). In this regard, as set forth in an informal opinion issued by the Office of the General Counsel of the New York State Insurance Department, “a health care provider who has accepted a no-fault assignment of benefits from a no-fault claimant may not pursue the patient directly for health services rendered that have been denied as medically unnecessary, notwithstanding the language of the assignment, which states in the event that the no-fault carrier fails or refuses to pay for the services provided then I, the patient, agree that I will be responsible for the value of services rendered by said Doctor,'”as “[t]he use of such language is prohibited under N.Y. Comp. Codes R. & Regs. tit. 11, § 65-3.11(b)(2) (2005) (Regulation 68-C)” (Ops Gen Counsel NY Ins Dept No. 06-05-07 [May 2006]; see John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d at 60; see also A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53, 64 [“informal opinion of the General Counsel, while not binding on the courts, is entitled to deference unless irrational or unreasonable” (citation omitted)]).”

“Here, in support of her cross motion, Kapeleris submitted evidence establishing that although she had assigned her right to no-fault benefits to two medical providers, Winthrop and Nancy E. Epstein, she was billed directly by Winthrop and LI Neurosurgical for their services after the claims of those providers were denied by Allstate for lack of medical necessity (cf. Abruscato v Allstate Prop. & Cas. Ins. Co., 165 AD3d 1209, 1211). Further, Kapeleris’s evidentiary submissions showed that she remitted payment to those providers for their services in connection with the subject accident. Thus, Kapeleris’s evidentiary submissions showed that neither Winthrop nor LI Neurosurgical could certify that “[t]hey have not received any payment from or on behalf of the assignor [Kapeleris],” and that they would “not pursue payment directly from the assignor for services provided by said assignee for injuries sustained due to the [subject] motor vehicle accident.” This evidence was sufficient to demonstrate, prima facie, that the assignment to Winthrop and LI Neurosurgical, though valid when made, had been rendered ineffectual, and therefore, Kapeleris had standing to pursue her claims for no-fault benefits against Allstate for services rendered by Winthrop and LI Neurosurgical.”

“Furthermore, Kapeleris demonstrated that she did not execute an assignment of her rights to collect no-fault benefits to Nassau Anesthesia (see 11 NYCRR 65-3.11[b][1], [2]; Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App. Term, 2d Dept]). Thus, Kapeleris also demonstrated, prima facie, that she had standing to pursue her claim for no-fault benefits against Allstate for the payment she made to Nassau Anesthesia.”

The issue was whether a written revocation of assignment of benefits is necessary when an injured person pays assigned non-coverage denied billings. The answer is not found in the regulations but is a function of common law and common sense.

And the developed case law led to the conclusion found in the Respondent’s brief and within the Court’s holding: the assignment was revoked through conduct.

Affirmed with costs.

No need to file cancellation with DMV? May 9, 2020

Matter of Global Liberty Ins. Co. v Ho Suk Shin, 2020 NY Slip Op 02469 (2d Dept. 2020)

The insured removed his vehicle from the policy. A dmv notice was not sent. The insured replaced the vehicle with a commercial vehicle. The carrier changes the policy number to accommodate the new vehicle. Now, the removed vehicle is involved in an accident. Is there coverage? The Appellate Division said no. Not a terribly logical decision, but to make the right the decision, the floodgates of hell would be opened on every removed car case.

“We agree with the Supreme Court’s determination denying that branch of the petition which was to permanently stay arbitration and dismissing the proceeding. Although the cancellation of an insurance policy is not effective as to third parties unless the cancellation is filed with the Commissioner of Motor Vehicles in accordance with Vehicle and Traffic Law § 313(2)(a) (see Vehicle and Traffic Law § 313[3]; Matter of Progressive Northeastern Ins. Co. v Barnes, 30 AD3d 523, 524; Matter of Chubb Group of Ins. Cos. v Williams, 14 AD3d 561, 562), here, the court determined that the insurance policy was not cancelled but rather that the same coverage was transferred to a different vehicle (see Vehicle and Traffic Law § 313[2][a]). Since the only changes to the policy at issue here were administrative—involving the substitution of one vehicle for another under the same policy and changing the number of the policy—State Farm was not required to notify the Department of Motor Vehicles (see 15 NYCRR § 34.1[d][2]; Vehicle and Traffic Law § 313[2][a]) and thus the petitioner’s contentions are without merit.”

“The July 1983 amendments to section 313 of the Vehicle and Traffic Law—changing the requirement for filing a notice of termination to include only policies, “as opposed to any insured vehicle or vehicles under such policy” (Vehicle and Traffic Law § 313[2][a])—govern this action. Thus, this Court’s determination in Matter of Eveready Ins. Co. v Wilson (180 AD2d 796, 797), which addressed the pre-1983 provisions of the statute, is not dispositive here.”

Sorry – I am not convinced. I do not mind losing when I should but if you saw the oral argument, they agreed with our position. As Rivera once told me on another case “Floodgates”.

Res judicata – privity May 7, 2020

East Hampton Capital LLC v Fergusson, 2020 NY Slip Op 02718 (1st Dept. 2020)

“This action is barred by res judicata in view of the prior decision in an action involving defendant and a prior owner of the subject apartment (NLI/Lutz, LLC [NLI/Lutz]). “[U]nder res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties,” or those in privity with them, on any “claims arising out of the same transaction or series of transactions . . . , even if based upon different theories or if seeking a different remedy”

The Master Cheng April 27, 2020

“Reliance by the Civil Court and defendant upon the part of the Supreme Court’s amended declaratory judgment stating that all judgments in any actions involving plaintiff herein, Master Cheng Acupuncture, P.C., as assignee of Defou, McKenzie and Jacques “are vacated” is misplaced, as “in general, relief from a judgment may only be sought from the court which rendered it” (Chestnut Hill Real Estate v Contractors Cas. & Sur. Co., 280 AD2d 446, 446 [2001]; Bronx Med. Diagnostic, P.C. v Global Liberty Ins. of NY, 65 Misc 3d 149[A], 2019 NY Slip Op 51842[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see Campbell v Bank of Am., N.A., 155 AD3d 820 [2017]; Commissioner of Labor of State of NY v Hinman, 103 AD2d 886 [1984]). As the Supreme Court lacked the authority to vacate the judgment which had been rendered by the Civil Court in the instant action (see Campbell, 155 AD3d 820; Chestnut Hill Real Estate, 280 AD2d 446; Commissioner of Labor of State of NY, 103 AD2d 886; Bronx Med. Diagnostic, P.C., 65 Misc 3d 149[A], 2019 NY Slip Op 51842[U]), the Civil Court erred in finding that it was constrained by the Supreme Court’s judgment to grant the branch of defendant’s motion seeking to vacate so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Jocelyn Defou, Ebenior Jacques and Thahina McKenzie. Consequently, that part of the judgment should not have been vacated”

“We note that the amended declaratory judgment permanently stayed enforcement of so much of the September 6, 2016 judgment as was in favor of plaintiff as assignee of Defou, Jacques and McKenzie.”

What did we learn here? A Supreme Court cannot vacate another court’s judgment, but can permanently stay its enforcement.

Election to arbitrate April 27, 2020

Ellen Sue Ginsberg, D.O., P.C. v New York City Tr. Auth., 2020 NY Slip Op 50431(U)(App. Term 2d Dept. 2020)

Once you make an election to arbitrate with respect to a Assignee/Assignor, you have given up the ability to change or “flit” forums. This election is not carrier specific if more than one carrier is responsible for first party benefits. It makes sense.

“In this action by a provider to recover assigned first-party no-fault benefits, defendant New York City Transit Authority (NYCTA) moved to dismiss the complaint insofar as asserted against it on the ground that plaintiff had previously elected to arbitrate its claims arising out of the underlying accident. Insofar as is relevant to this appeal, the District Court denied the motion on the ground that the previously arbitrated claims were against GEICO, not NYCTA.

Contrary to the determination of the District Court, since plaintiff’s claims against NYCTA are for treatment of the same assignor, for injuries arising from the same accident, plaintiff is bound [*2]by its initial election to arbitrate these claims, even though asserted against a different entity (see Roggio v Nationwide Mut. Ins. Co.,66 NY2d 260 [1985]; American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761, 763 [2013]; Cortez v Countrywide Ins. Co., 17 AD3d 508, 509 [2005]; 563 Grand Med., P.C. v Country-Wide Ins. Co., 61 Misc 3d 136[A], 2018 NY Slip Op 51556[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Cockett v Nationwide Mut. Ins. Co., 143 Misc 2d 249 [App Term, 2d Dept, 2d & 11thJud Dists 1988])”