Judicial notice of the Supreme Court file

IMA Acupuncture, P.C. v Hertz Co., 2016 NY Slip Op 50258(U)(App. Term 2d Dept. 2016)

This res judicata decision is interesting because it tests the outer of bounds of Judicial Notice.

“In any event, this court may take judicial notice of undisputed court records and files, including the judgment in the Supreme Court declaratory judgment action (see Renelique v State-Wide Ins. Co., ___ Misc 3d ___, 2016 NY Slip Op 50096[U] App Term, 2d Dept, 2d, 11th & [*2]13th Jud Dists 2016]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Matter of Allen v Strough, 301 AD2d 11 [2002]). In light of the Supreme Court’s declaratory judgment, defendant’s cross motion to dismiss should have been granted under the doctrine of res judicata”

The Court uses the word “may”.  May requires a request in your papers?

Unpreserved argument

Natural Therapy Acupuncture, P.C. v Unitrin Auto & Home Ins. Co., 2016 NY Slip Op 50133(U)(App. Term 2d Dept. 2016)

This is really a good argument.  But, it fell outside the Rybak boilerplate as to why a declaratory judgment order is not preclusive as to his client.  On appeal, unnamed appellate counsel tried to resuscitate an omitted meritorious argument.   Court said this:

“Plaintiff’s contention on appeal, in essence, that defendant was not in privity with Kemper, is unpreserved for appellate review, because plaintiff failed to raise the issue in the Civil Court (see Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 114 AD3d 935 [2014]; Peerless Ins. Co. v Casey, 194 AD2d 411 [1993]; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596 [1992]).”

Irony here.  I have an appeal where a meritorious argument was omitted from Rybak’s boilerplate and unnamed appellate counsel is not raising it on appeal.  I think we know the answer.

Unsettled order fails to dismiss Civil Court action

Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co., 2015 NY Slip Op 51886(U)(App. Term 2d Dept. 2015)

“Upon a review of the record, we find that since the March 2010 Supreme Court order in the declaratory judgment action merely granted the entry of a declaratory judgment, but failed to make a statement declaring the rights of the parties involved (see Hirsch v Lindor Realty Corp., 63 NY2d 878, 881 [1984]; Suburban Bindery Equip. Corp. v Boston Old Colony Ins. Co., 150 AD2d 767 [1989]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d, 11th & 13th Jud Dists 2015]), the Supreme Court order cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the instant no-fault action”

You know the order stated: motion granted, settled judgment.  Nothing else was decreed.  Defendant failed to settle a judgment and this is the result.

Unitrin citing that hits upon the Longevity factors

Easy Care Acupuncture P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51524(U)(App. Term 1st Dept. 2015)

“Contrary to plaintiff’s specific contention, defendant was entitled to request the IMEs prior to its receipt of plaintiff’s claim forms (see 11 NYCRR 65-1.1 [an insurer has a right to request IMEs “when, and as often as [it] may reasonably require”]; Steven Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006] [an insurer is entitled to request IMEs “before . . . or after the claim form is submitted” (emphasis supplied)]; see also Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]).”

In American Transit v. Longevity, we learned for the first time that 65-3.5(d) plays into the calculus of whether an IME letter is timely relative to the claim.  It would seem to me that scheduling IME’s prior to receipt of the claim forms would be the best way of complying with this regulation and avoiding a Longevity issue.  This regulation and 65-1.1 come into disharmony when the IME is scheduled more than 30-days after receipt of the billing,  The timing element of 3.5(d) takes second fiddle to the notion that “an insurer has a right to request IMEs “when, and as often as [it] may reasonably require”

So be it.  Disharmony is what keeps the law fluid and most of us employed.

Staged accident not proven – very sloppy papers

This just goes to show the attention to detail that is necessary in order to prevail on summary judgment on a staged accident.

Nationwide Gen. Ins. Co. v Linwood Bates III, 2015 NY Slip Op 06122 (2d Dept. 2015)

(1) The plaintiff asserted that several defendants failed to attend their scheduled depositions, which was purportedly a breach of Bates’s insurance contract with the plaintiff. The plaintiff, however, failed to submit evidence from someone with personal knowledge of the mailings of the deposition requests

(2) ” In addition, the uncertified police accident reports submitted by the plaintiff were not admissible”

(3) “Further, the unsigned and unsworn deposition transcript of the defendant Miguel Ortiz was inadmissible”

(4) ” The plaintiff submitted an affidavit of its investigator, but the investigator relied, mostly, on inadmissible evidence, and lacked personal knowledge of the facts surrounding the three collisions.”

It just does not get worse than this.  The Court pretty much stated that some people have no business filing staged accident DJ actions.  I almost imagine that if counsel had immaculate papers, a different result would arise.

Trial De Novo not tenable

Avenue C Med., P.C. v Encompass Ins. of MA, 2015 NY Slip Op 06101 (2d Dept. 2015)

“The statute permits an insurer or a claimant to institute a court action to adjudicate the dispute de novo where the master arbitrator’s award is $5,000 or greater” (Green v Liberty Mut. Ins. Co. Trust, 16 AD3d 457, 457). Here, the master arbitrator, by vacating the arbitrator’s award in its entirety, effectively made no monetary award, and, because the master arbitrator’s award was less than $5,000, neither party is entitled to maintain a court action to adjudicate the dispute de novo”

The common rule is that the last layer of review prior to filing a trial de novo must be more than $5,000.00  Thus, if a master arbitrator reduces or awards less than $5,000, then there is no right to file litigation.

Declaratory judgment reversed on appeal

Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc., 2015 NY Slip Op 05891 (1st Dept 2015)

“The IAS court denied plaintiffs’ motion for a default judgment, concluding that plaintiffs had not submitted sufficient proof of mailing the letters notifying defendant of the scheduled EUOs We note that defendant has not submitted opposition to the instant appeal.

We reverse. The affirmation of plaintiffs’ counsel submitted in support of plaintiffs’ motion for default clearly set forth the mailing procedures to defendant. Indeed, counsel represented, under penalty of perjury, that he personally verified the mailing process for every EUO letter sent. This was adequate proof that the EUO letters were mailed to defendant (see e.g. Olmeur Med. P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143 [A][App Term, 2d Dept 2013]); Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137[A] [App Term, 2d Dept 2014]).”

If you looked at the affidavits in this case, you would note that there are unexecuted affidavits of service relative to the EUO letters and a general attorney affirmation of mailing.  Probably threw the Court off.

Court apparently finds CPLR 3211(a)(4) sufficient to dismiss part of DJ

American Transit Ins. Co. v. Figueroa (Index #: 150603/14)(Sup Ct. NY CO. 2015)

The Supreme Court here appeared to be angered at a declaration judgment action.  Part of the motion that Defendant made was to dismiss based upon CPLR 3211(a)(4).  As we all know, American Transit v. Solorzano addressed this issue and found this basis of dismissal to be without merit.  Well, apparently another judge felt otherwise.

Was Solorzano even argued? You be the judge here.

Declaratory judgments: the minimum necessary to obtain collateral estoppel effect

Metro Health Prods., Inc v Nationwide Ins., 2015 NY Slip Op 25203 (App. Term 2d Dept. 2015)

The short-form order:

“[Nationwide]’s unopposed motion for a default judgment on this declaratory judgment action pursuant to CPLR 3215 is granted, there being no opposition.   Settle judgment on notice.”

The effect of the non-settled judgment

“Since the Supreme Court’s December 5, 2012 order in the declaratory judgment action did not make a declaration determining the rights of the parties involved…, but rather directed the insurer to settle the judgment on notice (which [*2]defendant did not demonstrate that it had done), the order cannot be considered a conclusive final determination. Therefore, the Supreme Court order has no preclusive effect on the instant no-fault action.”

Ultimate Health Prods., Inc. v American Tr. Ins. Co., 2015 NY Slip Op 50906(U)(App. Term 2d Dept. 2015)

“By order dated October 26, 2012, the Supreme Court granted the motion therein for a default judgment, which order stated, among other things, that “[t]his action was brought for a declaration that defendant Hiyomailys Lachapelle, (Lachapelle), and the medical provider[s] . . . of Lachapelle are not entitled to no-fault coverage with a motor vehicle accident that occurred on November 10, 2010 . . . [American Transit’s] motion for default judgment against [Lachapelle and Ultimate Health Products, Inc.] . . . is granted.”

“[T]he Supreme Court’s order is a conclusive final determination notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated”

As the reader can see, an order that does not set forth any decretal paragraphs is without probative value.

First Department upholds EUO DJ victory

Allstate Ins. Co. v Pierre, 2014 NY Slip Op 08921 (1st Dept. 2014)

“Plaintiff established that defendants are not entitled to no-fault benefits because their assignors failed to appear at scheduled examinations under oath (EUOs). This Court in Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]) held that the failure to submit to requested independent medical examinations (IMEs) constitutes a breach of a condition precedent to coverage under a no-fault policy and voids coverage regardless of the timeliness of the denial of coverage (id. at 560). Although the instant case involves the failure to appear at EUOs, and not IMEs, this Court’s holding in Unitrinapplies to EUOs (see e.g. Interboro Ins. Co. v Perez, 112 AD3d 483, 483 [1st Dept 2013]; Seacoast Med., P.C. v Praetorian Ins. Co., 38 Misc 3d 127[A] [App Term, 1st Dept 2012]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Defendants do not dispute that their assignors failed to appear at their first EUOs, and plaintiff established, through admissible evidence, that the assignors failed to appear at their second EUOs (see Arco Med. NY, P.C. v Metropolitan Cas. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52001[U], *2 [App Term, 2d Dept 2013]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept 2012]). Plaintiff also established that the statements on the record were business records (see e.g. People v Cratsley, 86 NY2d 81, 90-91 [1995]; One Step Up, Ltd. v Webster Bus. Credit Corp., 87 AD3d 1, 11-12 [1st Dept 2011]). Although plaintiff was required to show (and did show) that the assignors each failed to appeared at two EUOs (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U], *2 [App Term, 2d Dept 2012]), plaintiff was not required to demonstrate that the assignors’ nonappearances were willful (see Unitrin, 82 AD3d at 561).

Defendants’ argument that plaintiff failed to establish that it had mailed the EUO notices to the assignors’ correct addresses is unpreserved (see e.g. Ta-Chotani v Doubleclick, Inc., 276 AD2d 313, 313 [1st Dept 2000]) and unavailing (see American Tr. Ins. Co. v Leon, 112 AD3d 441, 442 [1st Dept 2013]). Similarly, their argument that plaintiff waived the defense of the assignors’ nonappearance because plaintiff did not establish that it ever denied defendants’ claims is unpreserved (see 276 AD2d at 313). In any event, the argument is unavailing, as defendants’ own verified answer alleged that plaintiff had denied their claims.

Defendants failed to show that summary judgment is premature due to outstanding discovery (see Interboro, 113 AD3d at 597).”


What is crazy about this case is that I see a body of work I created both good (American Transit v. Leon; Interboro v. Clennon; Quality v. Interboro) and bad (Interboro v. Perez; DVS v. Interboro) cited herein.  Perhaps a deja vu moment for me?  I have Rybak to thank for another great appeal.  And at the rate Rybak is going, the insurance carriers will not even need an affidavit to prove they mailed something.

In actuality, I thought this was going to get reversed because the second EUO no-shows were placed on the record and the EUO bust statements were missing the Court reporter’s certificate.   Also, the record was devoid of an NF-2 or any record proof from where the address came.  Not a bad case to take up actually, but a disastrous result for the providers.  It looks like the Court took the scheduling affidavit where the EUO transcripts were deemed business records and the Court went along with it.  The Court expanded “Leon” and said the carrier does not have to provide record evidence as to where it got the addresses of the Claimants.   Clever, and indeed a good job by Allstate.  Yet, a very sloppy set of motion papers.  Quixotic.