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It is prima facie day June 11, 2009

I suppose to the extent the Appellate Term, Second Department has been on the 4518 band wagon, it is nice to see the rule that certain evidentiary objections need to preserved in order to raise them on appeal. According to my count, there were 11 prima facie challenges in the June 10, 2009, posted cases. The preserved challenges were successful in all but one case. I suppose the question is: what must an affidavit contain to satisfy a medical provider’s prima facie case, and does it matter which branch of the Appellate Term, Second Department is adjudicating the issue?

Motion to Reargue – the 30 day period is not absolute June 7, 2009

From a procedural standpoint, a question that has arisen is whether a motion seeking leave to reargue or, in certain cases, leave to renew is timely made. Following the 1999 amendment to the statute, there has been debate as to whether the 30-day period to make the motion will be tolled when a timely notice of appeal is filed. This was answered in the negative a few times, but the recent trend has been to answer this inquiry in the affirmative. A recent case highlights this point.

Terio v. Spodek, 2009 N.Y. Slip Op. 04412 (2d Dept. 2009)

“Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in granting that branch of the motion…which was for leave to reargue. Reich’s appeal from the Supreme Court’s order dated December 17, 2007, was pending and unperfected as of the time that the motion for reargument was made. Under these circumstances, the Supreme Court providently entertained that branch of Reich’s motion which was for leave to reargue notwithstanding that it was made beyond the 30-day limit set forth in CPLR 2221(d)(3)”

It follows that as long as a Notice of Appeal has been filed and the appellate brief is unperfected, the 30-day time period to move to reargue or to take advantage of the “change in law” provision in the leave to renew statute remains tolled.

EBT’s in no fault practice – “laches does not apply” June 4, 2009

Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co. 2009 NY Slip Op 51073(U)(App. Term 2d Dept. 2009).

In yet another defeat to the Plaintiff’s bar in no-fault actions in the Second Department, the Appellate Term has now held that the passage of time will not in and of itself act to waive the right of an insurance carrier seeking to take an EBT of the Plaintiff.

While the facts do not state it, an EBT in no-fault is conditioned on the EBT not being palpably improper, which outside the corporate structure world, would mean that the insurance carrier has presumably presented proof of a timely and valid denial. The case law has already discussed this point.

This decision, as many know, is in contrast to Accurate Medical, P.C. v. Travelers Ins. Co. 13 Misc.3d 133(A)(App. Term 1st Dept. 2006), which held that:

“the record reveals that defendant served plaintiff with a notice of deposition and written discovery demands in August 2004. Defendant did not object to plaintiff’s written interrogatories nor did it avail itself of the opportunity to conduct plaintiff’s deposition prior to plaintiff filing a notice of trial in April 2006. Under these circumstances, and in view of defendant’s failure to show the need to conduct a deposition, the motion to vacate the notice of trial was properly denied.”

Accurate Medical did not cite to any authority for its rule of law, whereas the Queens Chiropractor Court cited to Kornblatt v Jaguar Cars, 172 AD2d 590 (2d Dept. 1991). The pertinent section of Kornblatt states the following:

“Finally, the plaintiff’s invocation of laches to prevent the production of the records lacks merit. In a deposition on March 9, 1988, JCI had requested the tax returns, but the plaintiff refused. Possessing the knowledge that JCI wanted the returns, then, any prejudice suffered by the plaintiff a year later when the court compelled their production was of his own making, and he cannot now complain.”

Yet, a reading of Kornblatt shows that a party resisting an EBT demand can assert laches, provided he or she demonstrates prejudice. But, it is hard to imagine how a showing of “prejudice” would be proved in a majority of litigated no-fault cases.

EBT's in no fault practice – "laches does not apply" June 4, 2009

Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co. 2009 NY Slip Op 51073(U)(App. Term 2d Dept. 2009).

In yet another defeat to the Plaintiff’s bar in no-fault actions in the Second Department, the Appellate Term has now held that the passage of time will not in and of itself act to waive the right of an insurance carrier seeking to take an EBT of the Plaintiff.

While the facts do not state it, an EBT in no-fault is conditioned on the EBT not being palpably improper, which outside the corporate structure world, would mean that the insurance carrier has presumably presented proof of a timely and valid denial. The case law has already discussed this point.

This decision, as many know, is in contrast to Accurate Medical, P.C. v. Travelers Ins. Co. 13 Misc.3d 133(A)(App. Term 1st Dept. 2006), which held that:

“the record reveals that defendant served plaintiff with a notice of deposition and written discovery demands in August 2004. Defendant did not object to plaintiff’s written interrogatories nor did it avail itself of the opportunity to conduct plaintiff’s deposition prior to plaintiff filing a notice of trial in April 2006. Under these circumstances, and in view of defendant’s failure to show the need to conduct a deposition, the motion to vacate the notice of trial was properly denied.”

Accurate Medical did not cite to any authority for its rule of law, whereas the Queens Chiropractor Court cited to Kornblatt v Jaguar Cars, 172 AD2d 590 (2d Dept. 1991). The pertinent section of Kornblatt states the following:

“Finally, the plaintiff’s invocation of laches to prevent the production of the records lacks merit. In a deposition on March 9, 1988, JCI had requested the tax returns, but the plaintiff refused. Possessing the knowledge that JCI wanted the returns, then, any prejudice suffered by the plaintiff a year later when the court compelled their production was of his own making, and he cannot now complain.”

Yet, a reading of Kornblatt shows that a party resisting an EBT demand can assert laches, provided he or she demonstrates prejudice. But, it is hard to imagine how a showing of “prejudice” would be proved in a majority of litigated no-fault cases.

Cornell May 29, 2009

Cornell Med., P.C. v Mercury Cas. Co.
2009 NY Slip Op 29228 (App. Term 2d Dept. 2009)

This case is extremely complicated. There are two points of law that came from this case. The first point of law that came from this case, and it is significant, is that a prima facie demonstration of failure to bill in accordance with the fee schedule raises an inference that a plaintiff attorney is not entitled to an attorney fee. The plaintiff attorney must then prove the two exceptions that are set forth in 65-4.6(i). Secondly, a counterclaim for monies paid in excess of the fee schedule is untenable.