The vague and conclusory denial again

Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co., 2014 NY Slip Op 01166 (2d Dept. 2014)

“However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the subject claim (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). The defendant submitted evidence showing that it mailed to the plaintiff a denial of claim form NF-10 within the requisite 30-day period (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[c]). Although the denial of claim form incorrectly stated the amount of the claim and the amount in dispute, under the circumstances of this case, these minor errors did not render the denial fatally defective and a nullity

“Contrary to the plaintiff’s contention, the fact that the defendant attached to its denial of claim form an unaffirmed and unsworn peer review report, which contained a stamped facsimile of the physician’s signature and did not comply with CPLR 2106, did not render the denial of claim ineffective, since the defendant was not obligated to submit the peer review report in the first instance (see CPLR 2106; cfVista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778). The relevant no-fault regulations do not require that a denial of claim form be supported by a peer review report or other medical evidence at the time that the denial of claim form is issued (cf. 11 NYCRR 65-3.8). Indeed, this Court has previously held that a defendant is not required to set forth a medical rationale in its denial of claim form”

(1) The denial with the incorrect information is sufficient to avoid preclusion.  It appears that this case rehashes 65-3.8(h): “With respect to a denial of claim (NYS Form N-F 10), an insurer’s non-substantive technical or immaterial defect or omission shall not affect the validity of a denial of claim. This subdivision shall apply to medical services rendered, and to lost earnings and other reasonable and necessary expenses incurred, on or after April 1, 2013.”

(2) AB v. Liberty is re-affirmed.  There is no  news on this front.  I am curious why this argument was made and why Supreme Court accepted it.

 

2309(c) defect waived (again)

Gonzalez v Perkan Concrete Corp., 2013 NY Slip Op 06835 (2d Dept. 2013)

“Finally, although the affidavits of the defendants’ expert, which were notarized outside of New York, were not accompanied by certificates authenticating the authority of the notaries who administered the oaths (see CPLR 2309[c]), this omission was not a fatal defect (see CPLR 2001; Matter of Recovery of Judgment, LLC v Warren, 91 AD3d 656, 657; Betz v Daniel Conti, Inc., 69 AD3d 545, 545; Smith v Allstate Ins. Co., 38 AD3d 522, 523). [*4]

Failure to comply with 2106 is somewhat excusable

Loucks v Klimek, 2013 NY Slip Op 05110 (4th Dept. 2013)

“Finally, we conclude that the court properly determined that plaintiff substantially complied with the requirement of establishing a meritorious claim by submitting an affirmation, rather than an affidavit, of a Florida expert who was not “authorized by law to practice” in New York (CPLR 2106; see Sandoro v Andzel, 307 AD2d 706, 707-708). The affirmation would have been sufficient to show merit had it been in proper evidentiary form. Thus, the court properly permitted plaintiff an opportunity to supply an affidavit from the Florida expert within 30 days of notice of entry of its order.”

Here, it is presumed that the expert if they were licensed in New York would be able to utilize CPLR 2106.  This differs from a chiropractor or psychologist who as a matter of New York cannot utilize the affirmation device.

Psychologist was not duly sworn and then there is 2106

Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 50063(U)(App. Term 2d Dept. 2013)

“Defendant also submitted a peer review report of its psychologist, to which plaintiff objected in its opposing papers on the ground that the report was not in proper form. The Civil Court correctly held that the peer review report was not in admissible form because, pursuant to CPLR 2106, defendant’s psychologist could not affirm the truth of the statements contained therein (see Pascucci v Wilke, 60 AD3d 486 [2009]) and while the peer review report contained a notary public’s stamp and signature, it contained no attestation that the psychologist had been duly sworn or that she had appeared before the notary public”

Do I read the “or” as meaning that it would be acceptable if the psychologist has given an acknowledgment, which was sworn to a notary?  Isn’t an oath when you swear to the truth of something?

Just seems odd.

Certificate of acknowledgment can possibly(?) be cured nunc-pro-tunc

Galetta v Galetta, 2012 NY Slip Op 04865 (4th Dept. 2012)

We here about the now dead(?) certificate of conformity.  How about the certificate of acknowledgment that must be annexed to a prenuptual agreement?  In a procedurally interesting 3-2 decision, the Fourth Department says “maybe”.

Factually, Plaintiff moved for summary judgment in a matrimonial action seeking to declare that the prenuptual agreement was invalid.  The motion was based upon the failure of the acknowledgment stating that the deponent: “knows or has satisfactory evidence, that the person making it is the person described in and who executed such instrument.”

The Court held that this could be cured based upon the facts in the record.  According to the Court,”Here, defendant is not attempting to cure the complete absence of a contemporaneous acknowledgment. Rather, he is attempting to submit evidence that there was, in fact, a proper and contemporaneous acknowledgment at the time the prenuptial agreement was executed.  In our view, the affidavit from the notary who took [*3]defendant’s acknowledgment is sufficient to raise a triable issue of fact whether “the parties . . . contemporaneously demonstrated the deliberate nature of their agreement” (Schoeman, Marsh & Updike v Dobi, 264 AD2d 572, 573, lv dismissed 94 NY2d 944, 97 NY2d 721, lv denied 100 NY2d 508; cf. Leighton v Leighton, 46 AD3d 264, 265, appeal dismissed 10 NY3d 739). The statements of the notary, i.e., that it was his usual and customary practice to ask and confirm that the person signing the document was the same person named in the document and that he or she was signing said document, “constitute competent and admissible evidence concerning routine professional practice sufficient to raise a triable issue of fact” (Gier v CGF Health Sys., 307 AD2d 729, 730; see generally Halloran v Virginia Chems., 41 NY2d 386, 389). We thus conclude that the court properly denied that part of plaintiff’s motion for summary judgment seeking a determination as a matter of law that the parties’ prenuptial agreement is invalid.”

I mention this because what do the rules of curing deficiencies in this type of certificate and the infamous certificate of conformity have in common?

Well, not a whole heck of a lot.

May 2309(c) finally rest in peace.

Fredette v Town of Southampton, 2012 NY Slip Op 03595 (2d Dept. 2012)

“it improvidently exercised its discretion in excluding from consideration the affidavits of Ken Glaser and Kris Kubly on the ground that the affidavits, while notarized, were not accompanied by a certificate of conformity required by CPLR 2309(c). This Court has previously held that the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect (see Smith v Allstate Ins. Co., 38 AD3d 522, 523), a view shared by the Appellate Division, First and Third Departments as well (see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672 [1st Dept]; Sparaco v Sparaco, 309 AD2d 1029, 1031 [3d Dept]; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833 [3d Dept]; see also Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2309:3).”

So the newest 2309(c) case now holds that this statute is irrelevent

U.S. Bank Natl. Assn. v Dellarmo, 2012 NY Slip Op 02481 (2d Dept. 2012)

“The plaintiff’s failure to comply with CPLR 2309(c) in submitting various documents, including, among others, the corrective assignment, which were notarized outside the state but not accompanied with a certificate in conformity with CPLR 2309(c), was not a fatal defect, as such certification may be provided nunc pro tunc”see CPLR 2001….”

Improper use of an affirmation cost Plaintiff its case

Radiology Today, P.C. v Mercury Ins. Co., 2012 NY Slip Op 50148(U)(App. Term 2d Dept. 2012)

“In opposition to the motion, plaintiff submitted a doctor’s affirmation and the claim forms, which identified the doctor as plaintiff’s owner. In its reply papers, defendant objected to the affirmation on the ground that it failed to comply with CPLR 2106. Plaintiff’s submission of the doctor’s affirmation was improper because the doctor is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 [1981]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Even if the affirmation of plaintiff’s doctor could properly be considered, plaintiff nevertheless failed to raise an issue of fact, as the doctor’s affirmation did not meaningfully refer to, let alone rebut, the conclusions set forth in defendant’s peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]).”

I am pretty sure this was my appeal.

More plaintiffs fail to rebut an insurance carrier’s medical utilization report

Richmond Pain Mgt., P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 52015(U)(App. Term 2d Dept. 2010)

(my case) Radiology Today, P.C. v Mercury Ins. Co., 2010 NY Slip Op 52020(U)(App. Term 2d Dept. 2010).  Dr. Shapiro’s affidavit was found not to sufficiently rebut the peer report.  The Shapiro affidavit was somewhat detailed.

(my case) Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 2010 NY Slip Op 52022(U)(App. Term 2d Dept. 2010).  This case also involves the failure to obtain a proper affidavit from a chiropractor; but the defect was overlooked due to the failure of the plaintiff to object to the same.

The fifth time 2106 was invoked

Crotona Hgts. Med., P.C. v Mercury Ins. Co., 2010 NY Slip Op 52019(U)(App. Term 2d Dept. 2010)

“In opposition to the motion, plaintiff submitted an affirmation executed by its principal, Dr. Cordaro. Defendant objected to that affirmation in its reply papers, citing CPLR 2106. The submission of Dr. Cordaro’s affirmation was improper because Dr. Cordaro is a principal of plaintiff professional corporation, which is a party to the action.”

This was the fifth case where I prevailed on this discreet and hypertechnical issue.  I believe this is the final appellate case I have perfected involving this issue.  So, the next time you see this issue arise, rest assured that it will not be my doing.