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Forum Non Conveniens February 1, 2020

Monroe v Foremost Signature Ins. Co., 2019 NY Slip Op 52042(U) (App. Term 2d Dept. 2019)

“In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, an order dismissing the complaint pursuant to CPLR 327, on the ground that the action should have been commenced in New Jersey, where the accident had occurred. Plaintiff opposed defendant’s motion on the ground that defendant had failed to establish where the accident had occurred, and cross-moved for summary judgment. By order entered December 18, 2017, the Civil Court granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 327, without reaching the remaining branches of defendant’s motion, and denied plaintiff’s cross motion.

Under the doctrine of forum non conveniens, a court may dismiss an action when, although it may have jurisdiction, it determines that, “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). The doctrine is flexible and requires the balancing of many factors, such as “the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]; see Xiu Zhang Yin v Bennett, 78 AD3d 936 [2010]).

Upon the record before us, we find that defendant failed to demonstrate any potential hardship to proposed witnesses if the action is heard in New York (see Turay, 61 AD3d at 966), and defendant failed to otherwise establish with admissible evidence that “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). Consequently, the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens should have been denied.”

Assuming this was a NJ policy, a motion to dismiss due to lack of compliance with the giving the carrier a chance to adjust the claim before suit or to move into arbitration under AICRA should have been made.

Longevity Med. Supply, Inc. v 21st Century Ins. Co., 2019 NY Slip Op 52041(U)(App. Term 2d Dept. 2019)

“In the case at bar, defendant relied upon a New Jersey police crash investigation report to demonstrate both that the underlying accident had occurred in New Jersey and that plaintiff’s assignor lived in Texas, thus offering the police report to establish the truth of the matters asserted therein. However, the police report constituted inadmissible hearsay, as the report was not certified as a business record (see CPLR 4518 [a]; Gezelter v Pecora, 129 AD3d 1021 [2015]; Hernandez v Tepan, 92 AD3d 721 [2012]). Consequently, defendant failed to demonstrate the location of the underlying accident or the assignor’s residence. In any event, we note that defendant’s own exhibits—an NF-3 form, invoice for the supplies at issue, and assignment of benefits form—all stated that the assignor lived in Staten Island. Upon the record presented, we find that the Civil Court erred in determining, as to the branch of defendant’s motion seeking dismissal based on forum non conveniens, that defendant’s evidence had sufficiently demonstrated a lack of significant contacts to New York.”

It’s the 30-day rule February 1, 2020

Success Rehab, PT, P.C. v Hereford Ins. Co., 2019 NY Slip Op 52031(U) (App. Term 2d Dept. 2019)

“Contrary to defendant’s contention, defendant did not establish its entitlement to summary judgment. Defendant acknowledged that it had received 9 of the 12 claims at issue between May 13, 2015 and June 19, 2015 and that plaintiff’s assignor’s first IME was scheduled for August 3, 2015. As that IME had not been scheduled to be held within 30 calendar days after defendant had received those claims, defendant did not demonstrate its entitlement to summary judgment dismissing so much of the complaint as sought to recover upon those claims based upon the assignor’s failure to appear for IMEs (see 11 NYCRR 65-3.5 [d] “

Verification and fee schedule issues February 1, 2020

Blackman v Nationwide Ins., 2019 NY Slip Op 52038(U) (App. Term 2d Dept. 2019)

Two lessons. The Appellate Term is still finding the generic I mailed the verification affidavit sufficient to raise an issue of fact. Seems wrong to me. Secondly, the Judge Hackeling’s constitutional findings on FS predictability seem to be in doubt.

“Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification. Moreover, we find that, on this record, there is also a triable issue of fact as to defendant’s fee schedule defense, which defense, contrary to the finding of the Civil Court, defendant was not required to establish that it had preserved, as the services at issue were rendered in 2015 (see 11 NYCRR 65—3.8 [g] [1] [ii]; [2]).

Accordingly, the judgment is reversed, so much of the order entered December 8, 2017 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.”

Statute of limitations February 1, 2020

Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co., 2019 NY Slip Op 52028(U)(App. Term 2d Dept. 2019)

I think the standard of law would be the lesser of thirty-days after receipt or the date a denial is issued.

” Defendant demonstrated that plaintiff’s cause of action accrued 30 days after defendant received plaintiff’s claim and plaintiff did not rebut that showing (see DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff’s cause of action was not timely commenced (see CPLR 213 [2]; DJS Med. Supplies, Inc., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U]). “

I also liked this line: ” Plaintiff’s contention that defendant should be collaterally estopped from asserting a [*2]statute of limitations defense lacks merit since, among other things, the Civil Court order upon which plaintiff relies denied a motion by defendant and was not a conclusive final determination”

Too many attorneys play “fast and loose” with concepts of law to trick judges and others. This is a prime example. Everyone knows or should know that CE only applies to a final determination. While we are at it, law of the case does not apply to pre-answer motions or applications for an injunction.

The Neptune rule February 1, 2020

Wes Psychological Servs., P.C. v Travelers Ins. Co., 2019 NY Slip Op 52029(U)(App. Term 2d Dept. 2019)

“Contrary to defendant’s sole contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims”