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“Kids, dont try this at home” February 26, 2009

I got that line from another blogger. That comment refers to a case that is anything but remarkable.

Although there was a long and very thoughtful dissent on what the probably should be, the majority made two salient points.

Continental Med., P.C. v Mercury Cas. Co.
2009 NYSlipOp 50234(U)(App. Term 2d Dept. 2009)

“Although chiropractors may not affirm pursuant to CPLR 2106 this defect was waived since plaintiff failed to object in the court below. As a result, the IME report proffered by defendant established defendant’s prima facie entitlement to summary judgment on the ground that the services rendered to plaintiff’s assignor were not medically necessary”

“In opposition, plaintiff proffered an unsworn medical report which was “dictated but not read.” Thus, it was of no probative value. Inasmuch as plaintiff failed to rebut defendant’s prima facie case, defendant’s motion for summary judgment dismissing the complaint should have been granted”

I think, and this is just me, but New York should follow the Federal and New Jersey model where a party can submit a “certification”, which would have the same force and effect as an affidavit. In the criminal realm, this is done all the time. But the law is what it is…

"Kids, dont try this at home" February 26, 2009

I got that line from another blogger. That comment refers to a case that is anything but remarkable.

Although there was a long and very thoughtful dissent on what the probably should be, the majority made two salient points.

Continental Med., P.C. v Mercury Cas. Co.
2009 NYSlipOp 50234(U)(App. Term 2d Dept. 2009)

“Although chiropractors may not affirm pursuant to CPLR 2106 this defect was waived since plaintiff failed to object in the court below. As a result, the IME report proffered by defendant established defendant’s prima facie entitlement to summary judgment on the ground that the services rendered to plaintiff’s assignor were not medically necessary”

“In opposition, plaintiff proffered an unsworn medical report which was “dictated but not read.” Thus, it was of no probative value. Inasmuch as plaintiff failed to rebut defendant’s prima facie case, defendant’s motion for summary judgment dismissing the complaint should have been granted”

I think, and this is just me, but New York should follow the Federal and New Jersey model where a party can submit a “certification”, which would have the same force and effect as an affidavit. In the criminal realm, this is done all the time. But the law is what it is…

A conflict at the worst possible time for interest February 20, 2009

I will save the commentary for another time, or another blog. My thoughts of the self-destructive behavior of attorneys probably belongs in an article I should write for the “journal of sociology”, which academics publish from time to time. I almost remember a theory in one of my criminology classes that was called “labeling theory”. In short, people live up to their labels. This is no exception.

On the law, the Appellate Division has now held that interest commences from the filing of a lawsuit if a bill is denied. Thus, all one needs to do is demonstrate that a denial was mailed before a lawsuit is commenced and pre-suit interest has just disappeared. This is completely in variance with the regulations which state that interest will toll upon issuance of a denial and re-commence after a suit or arbitration is commenced.

Thus assume a 2003 date of service that was submitted at that time. The bill is denied in 2007 and suit is commenced in 2009. The regulations, as I always understood them, stated that Applicant would be entitled to 4 years interest. The clock would then stop until 2009. In 2009, the clock would re-commence.

The Appellate Division has now held, in the above hypothetical, that the 2007 denial now wipes out all pre-suit interest. It is an interesting interpretation. From a policy standpoint, it makes sense since quick resolutions of disputed bills are the purported hallmark of no-fault. We all know that is false, in practice. But taken to its logical apex, the decision remains faithful to that intent.

The problem is that text which is clear on its face needs to be interpreeted as written, even in the face of a legislative intent that says otherwise. Be it as it may, this was a gift nobody probably saw coming.

Now to the central holding of East Acupuncture:

East Acupuncture, P.C. v Allstate Ins. Co.
2009 NY Slip Op 01191 (2d Dept. 2009)

“Accordingly, the Appellate Term properly determined that interest pursuant to Insurance Law § 5106(a) did not begin to accrue on the claims that were untimely denied by Allstate until East Acupuncture filed its complaint. Thus, the Appellate Term properly reversed the order of the Civil Court and remitted the matter for the new interest calculation. “

A radiologist’s detailed analysis of an MRI film is sufficient to show lack of causal relation February 15, 2009

Valentin v Pomilla
2009 NY Slip Op 00981 (1st Dept. 2009)

“Defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting a radiologist’s affirmed report that plaintiff’s MRI films revealed evidence of degenerative disc disease predating the accident and no evidence of post-traumatic injury to the disc structures (see Perez v Hilarion, 36 AD3d 536, 537 [2007]). In opposition, plaintiff failed to raise an inference that his injury was caused by the accident (see Diaz v Anasco, 38 AD3d 295 [2007]) by not refuting defendants’ evidence of a preexisting degenerative condition of the spine. Missing from all of plaintiff’s submissions is any mention of the congenital defect at the S1 vertebral level and degenerative condition of plaintiff’s lumbar spine reported by Dr. Eisenstadt or the preexisting degenerative changes in his right knee and degenerative meniscal tears in both posterior horns of both menisci reported by plaintiff’s own experts, Drs. Lubin and Rose, in their initial evaluation of plaintiff’s right knee shortly after the accident (see Pommells v Perez, 4 NY3d 566, 580 [2005]).

A radiologist's detailed analysis of an MRI film is sufficient to show lack of causal relation February 15, 2009

Valentin v Pomilla
2009 NY Slip Op 00981 (1st Dept. 2009)

“Defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting a radiologist’s affirmed report that plaintiff’s MRI films revealed evidence of degenerative disc disease predating the accident and no evidence of post-traumatic injury to the disc structures (see Perez v Hilarion, 36 AD3d 536, 537 [2007]). In opposition, plaintiff failed to raise an inference that his injury was caused by the accident (see Diaz v Anasco, 38 AD3d 295 [2007]) by not refuting defendants’ evidence of a preexisting degenerative condition of the spine. Missing from all of plaintiff’s submissions is any mention of the congenital defect at the S1 vertebral level and degenerative condition of plaintiff’s lumbar spine reported by Dr. Eisenstadt or the preexisting degenerative changes in his right knee and degenerative meniscal tears in both posterior horns of both menisci reported by plaintiff’s own experts, Drs. Lubin and Rose, in their initial evaluation of plaintiff’s right knee shortly after the accident (see Pommells v Perez, 4 NY3d 566, 580 [2005]).