Proof of damages

Johnson v Robertson, 2015 NY Slip Op 06658 (2d Dept. 2015).

Moreover, “[p]roof of damages may be based solely on oral testimony as long as the witness has knowledge of the actual costs” (Electronic Services. Intl. v. Silvers, 284 A.D.2d 367, 368, 726 N.Y.S.2d 441). The record demonstrates that the Robertson defendants, who had 20 years of experience in construction and had built over 100 homes, had knowledge of the actual costs of the services being provided

You have someone who is close to an expert who tells you that it will cost $40,000 to fix a prior contractor’s defective work.  This testimony does not have an etiology in documentary evidence; it is solely based upon the contractor’s knowledge.  Enough?  Many judges will say no (true case I tried).  The Appellate Division said otherwise.

This one fell under the radar

Arzu v NYC Tr. Auth., 2012 NY Slip Op 22008 (Civ. Ct. Kings Co. 2012)

The last thorny issue in PIP practice that has not gotten much attention: 65-3.9(d).  This is the toll of interest that applies when a plaintiff lets a case sit in limbo ad finitium.

As we all know, interest accrues at 2% per month.  For those who have been lucky to find old reg bills that were prosecuted within the 6-year SOL, that 2% is compounded.  Yet, what happens when a Plaintiff purchases an index number and bottles a case up for 10 years?

Well, one particular plaintiff attorney, in my estimation “mastered” this trick.  You cannot blame him and have to respect him.  If you are able to sit on receivables without a client demanding immediate recompense, then why would you not attempt to obtain at least 24% on your receivables, when the amount you can obtain from the bank on this money is 1.05%?

Here, we have an endorsed complaint for $25,000 and a plaintiff who happily waited for Defendant to draw first blood.  Defendant woefully failed to comprehend who he was dealing with and ended up in a situation where the within case was not even trial ready, and 10-years of interest accrued.

Defendant, however, appears to have outfoxed the Plaintiff by arguing that 3.9(d) applies and interest must toll.  Yet, Plaintiff still did not make out badly.  Here are some snippets of this case that should arouse some thought.

Rule of Law

(1) Significantly, claimants or applicants are also required to act promptly or face the tolling of insurance. Pursuant to 11 NYCRR §65-3.9(c), where the applicant does not commence litigation within 30 days of the denial of the claim or payment of benefits, the interest shall be tolled until such action is taken. Pursuant to 11 NYCRR §65-3.9(d), interest shall accrue once the applicant has submitted a dispute to arbitration of the courts “unless the applicant unreasonably delays the …court proceeding.” Thus, “[f]ailure to act promptly after a denial of claim results in a toll of the statutory interest provisions, for to do otherwise would reward a recalcitrant plaintiff with a windfall of punitive interest payments and would contravene the legislative goal of promptly resolving no fault claims.” Devonshire Surgical Facility et al v. American Transit Ins. Co., 2011 NY Slip Op 50793(U), 31 Misc 3d 1221(A) (Civil Ct., NY Co., 2011). See East Acupuncture. P.C., supra, 61 AD3d at 210.

(2) Per the clear language of the regulation, the interest which accrues on overdue no fault penalties acts as an incentive for both insurers and claimants to act promptly. The insurer must first promptly adjust the claims or face payment of interest to an applicant who prevails in litigation. However, once a denial or payment of benefits has been made by the insurer, the incentive to act promptly switches to the applicant who first initiate the lawsuit within 30 days of the denial and must then not unreasonably delay the prosecution of the case in order to avoid the tolling of interest. See, Devonshire Surgical, supra at 4; See also, LMK Psychological Services, Inc., 12 NY3d 217, 223-24 (2009) (the Superintendent of Insurance has interpreted the tolling of interest provision contained in subdivision (c) to apply, regardless of whether the particular denial at issue was untimely so as to encourage applicants to swiftly seek to resolve any dispute). Canarsie Med. Health, P.C. v. National Grange Mut. Ins. Co., 21 Misc 3d 791, 797 (Sup. Ct., NY Co. 2008)(The regulation contains a “built-in protection against potential delay by providing that where an applicant chooses not to timely press forward to seek redress for a denial, there will be no interest penalty assessed against the insurer until such time as the applicant chooses a remedy. This is in keeping with the intent of the No-Fault Law as a whole because it seeks to encourage the parties moving forward toward a quick resolution, while not economically favoring one side or the other.”).

Court’s Observation

(1) Here, plaintiff’s delay in prosecuting the case is especially egregious. Plaintiff first waited nearly four years to respond to discovery demands resulting in defendant filing a motion to preclude plaintiff from offering evidence. Only upon receipt of this motion did plaintiff enter into a So-Ordered stipulation whereby plaintiff was to provide copies of the allegedly unpaid [*4]bills within 45 days or be precluded from offering such evidence at trial. Defendant disputes that it ever received the sought disclosure as a rationalization as to why it did not serve plaintiff with a notice to resume prosecution and file a note of issue for approximately five years. Yet, ironically, plaintiff claims that it actually mailed the sought after discovery in 2005. Hence, by its own admission, plaintiff concedes that it waited five years to resume prosecution of the case, and that it was spurred to action by being served by defendant with a notice to resume prosecution and file a note of issue.

Remedy

To make both the insurer and applicant equally responsible for moving the case forward would contravene both the explicit language of the regulations and the intent of the legislation by creating an incentive for the applicant to do nothing and hence receive a windfall in punitive interest payments as the case languished in perpetuity. As such, this Court holds that inaction on the part of the applicant for five years after it received discovery from the defendant constitutes an unreasonable delay and directs that the interest be tolled from one year after plaintiff complied with the discovery request.

An Aside

I probably would have made a pre-answer motion to dismiss under Lopes v Liberty Mut. Ins. Co., 24 Misc.3d 127(A)(App. Term 2d Dept. 2009).   I think there would be a decent chance of success and you would limit the interest exposure.  Be careful for Domotor issues; still, make Plaintiff properly plead out his case.


Interest does not toll absent proof that a denial was mailed

Corona Hgts. Med., P.C. v Liberty Mut. Ins. Co., 2011 NY Slip Op 21130 (App. Term 2d Dept. 2011)

“Where, as here, a defendant has not established the proper mailing of the denial of claim form, the claim is considered not to have been denied and payment of benefits will therefore be considered to be “overdue” within the meaning of Insurance Law § 5106 (a). Accordingly, interest on the claim will not be tolled (cf. LMK Psychological Servs., P.C. v State Farm. Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]), and commences to accrue “30 days after the claim was presented to the defendant for payment until the date the claim was or is paid” (Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]). As plaintiff calculated interest on the claims in question as commencing 30 days after defendant’s receipt of said claims, the Civil Court erred, in its order entered March 26, 2009, in directing that interest be recalculated from the date of the commencement of the action. Similarly, it was error to direct that interest accrue until the date of the order granting plaintiff’s motion for summary judgment, since interest accrues “until the date the claim was or is paid” (id.). It is noted that plaintiff is not entitled to interest pursuant to the Civil Practice Law and Rules, since Insurance Law § 5106 (a) and the regulations promulgated thereunder supersede the provisions for interest contained in the CPLR (Matter of Government Empls. Ins. Co. [Lombino], 57 AD2d 957, 959 [1977]; see also Smith v Nationwide Mut. Ins. Co., 211 AD2d 177 [1995])”

The dissent is interesting, but I think there are three issues here.

First, the regulation that the court quotes says the following: “If arbitration is not requested or an action is not commenced “within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken”  Seems to me the burden is on the plaintiff to prove lack of receipt as part of a prima facie case to avoid the tolling.

Second, “if a dispute has been submitted to arbitration or to the courts, “interest shall accumulate, unless the applicant unreasonably delays the . . . court proceeding” (Insurance Department Regulations [11 NYCRR] § 65-3.9 [d]).”  Does waiting six years before commencing an action constitute an “unreasonable delay”?

Third, no-fault interest runs until the bil; or judgment is paid.

Defaults and interest

This “default” case is quite strange.  SZ Med., P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 20044 (App. Term 2d Dept. 2010).

The majority and the dissent have a different take on the facts and circumstances of this matter.  At its core, this case involves a summary judgment victory on default, where the lower court vacated the default but the appellate term reversed.  The details are where this case gets nasty.

It is alleged that the judgment on the underlying order was not entered for 4 years after the victory on the motion.  A motion to vacate was not filed for 8 months after a proposed judgment was served upon Defendant.  There are allegations of improprieties involving an attorney promising to work something out, yet allegedly reneging on his promise.  There are checks representing 40% of the balance that are alleged to be cashed, but have the word “void” written on them.  It appears there are no denial of claim forms, so as to substantiate the over billing defense.  I am assuming the affidavit of the carrier is equally devoid of any facts to clarify the matter.  And then, there is 65-3.9(d)(the interest tolling provision involving the failure to prosecute a claim) which made its debut in appellate case law today.  Also, Mr. Amos Weinberg’s name and his suspension from the practice of law were mentioned in the dissent.  A lot of stuff for a 5015(a)(1) vacatur of default case.

That sums up the facts of this case.

The real issue that caused concern, for both the minority and the majority tangentially, involved the plaintiff waiting 4 years to enter a judgment, and collecting 24% per annum on the principle sum from when he was granted leave to enter judgment to when the judgment was entered.  During the pre-LMK era, this was a non-issue because every late denial lost the interest toll.  Thus, nobody concerned themselves with 3.9(d), since there were so many old  denials and defective denials in circulation. The focus was on how to stop Pre-LMK non tolled penalty interest.  Since it has been held that interest always tolls until an action is commenced, save those instances where a bill is not denied, the only way to obtain a return that is 12 times prime is to put a matter into litigation and sit on it.  Some Plaintiffs do this, and given the rate of return that no-fault interest offers, it is not necessarily a bad idea from a business perspective.

But now that we are post LMK, there is now going to be a focus on closing the last loop hole to collect interest: 3.9(d).  I think we all knew this was coming.  Admittedly, this was not the best case to argue this point because the defendant’s papers seeking to vacate the default seemed porous.

As to the part about Mr. Weinberg breaking his promise, this could hold water if there was a better showing of a meritorious defense.  Through reading thousands of decisions, the trend in the Second Department and the other Appellate Divisions is that the better the defense, the more forgiving the court will be as to finding a reasonable excuse.  This is not always true – and we have seen many cases where a showing of a strong meritorious defense did not make up for a weak reasonable excuse.  Since there was no meritorious defense through the presented proofs, the court turned a blind eye to this potential issue.

This is how I read this case.  But mark my words: 3.9(d) will be the next monster that attacks the plaintiffs bar.  And honestly, if an action is not being actively prosecuted, should a medical provider really be earning 24% on that money?  It does not seem equitable to me.

As a footnote, if you want to read about how equity has the ability to turn no-fault practice on its head, read the last no-fault wrap up that Mr. Barshay and Mr Gottlieb published in the New York Law journal.