For the All on NY fans: you were wrong.

Hereford Ins. Co. v Lida’s Med. Supply, Inc., 2018 NY Slip Op 03226 (1st Dept. 2018)

(1) “While plaintiff’s notice of motion did not specify that it was solely moving for summary judgment on its first cause of action, its attorney’s affirmation shows that they were limiting the relief sought to this claim.” (if this is a volume business a pro-forma motion, then why not have a software system that indicates this)

(2) “When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it “constitutes a breach of a condition precedent vitiating coverage””

(3) “Here, plaintiff established its entitlement to judgment as a matter of law by submitting the letters sent to each claimant notifying them about the date, time, and location of the initially scheduled IME and a second scheduled IME and affidavits of service for these letters. Plaintiff also submitted affidavits from each medical professional assigned to conduct the scheduled IME, with each stating that the medical professional was in his or her office at the date and time of the scheduled IME, the respective claimant failed to appear, the appointment was kept open until the end of the day, and at the end of the day, the medical professional filled out the affidavit acknowledging the nonappearance.”

(4)”Because Hereford sent the notices scheduling the IMEs prior to the receipt of each of the claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply (see Mapfre at 469). Furthermore, plaintiff was not required “to demonstrate [*2]that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424-25 [1st Dept 2013]]).”

Two things to take from this.

First, the All of NY case was limited to a provider EUO no show DJ predicated upon a record missing demonstrative evidence.  In contrast,  this was the boilerplate IME no-show DJ.  The result makes sense and is consistent with prior precedent.

Second, I think the proof of the no-show here is a lot less than the line of cases that the Appellate Term, First Department created.  But this would make sense when you look at how these panel judges when all of them sat in no-fault land (Civil and Supreme Court DJ parts).


DJ not collateral estoppel

Active Care Med. Supply Corp. v Amica Mut. Ins. Co., 2018 NY Slip Op 50500(U)(App. Term 2d Dept. 2018)

The man who wrote the book glossed over the discussion of Magic Recovery in seeking to backdoor summary judgment win.  Sneaky.

“However, plaintiff herein was neither named nor served in the Supreme Court declaratory judgment action. Moreover, plaintiff was not in privity with the injured party, as the assignment of benefits had been executed before defendant commenced the declaratory judgment action. Thus, plaintiff had no full and fair opportunity to defend its interests in that action”

Failure to include order/judgment with declaration is fatal

Active Chiropractic, P.C. v 21st Century Ins. Co., 2018 NY Slip Op 50200(U)(App. Term 2d Dept. 2018)

Many times the Court will write motion granted settled order, or include certain facts without “adjudging” or “declaring” the rights of the parts.

This case signifies the importance to obtain a signed and entered judgment setting forth the declarations to which you believe you are entitled when the occasion arises.  The defaulting defendant’s remedy is to open the DJ.

See below.

“With respect to defendant’s cross motion, as the December 8, 2014 Supreme Court order in the declaratory judgment action merely granted the branch of defendant’s motion for the entry of a default judgment against plaintiff and its assignor, 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 Dept, 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 action at bar”

The prologue here is that a judgment was eventually signed.

Avoiding the 120-day rule to make a summary judgment motion

Active Chiropractic, P.C. v Allstate Ins., 2018 NY Slip Op 50201(U)(App. Term 2d Dept. 2018)

“Initially, we note that, although defendant’s motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), the motion was made after issue had been joined (see generally CPLR 3211 [e]). “Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). While the Civil Court never notified the parties that it was treating the motion as one for summary judgment, an exception to the notice requirement is applicable, as defendant’s motion exclusively involved “a purely legal question rather than any issues of fact” (Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, it was proper for the Civil Court, in effect, to treat defendant’s motion to dismiss as one for summary judgment “without first giving notice of its intention to do so” (Four Seasons Hotels, 127 AD2d at 320).”

Upon finding the motion properly brought and timely, judgment on the unpleaded affirmative defense was granted.

DJ went south

Unitrin Advantage Ins. Co. v All of NY, Inc., 2018 NY Slip Op 00810 (1st Dept. 2018)

In the approximately  10 years, since Unitrin brought the notion of the condition precedent DJ.  And now, 9 years later, it has almost been destroyed on a less than stellar record.  You should read the record and then look at the oral argument (nobody asked a question except to point certain documentation was missing and it continued with the apology that it was a long day).

Point I

“Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65—3.5(b) and 11 NYCRR 65—3.6(b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5(b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.”

Two problems here.  First this was a provider EUO.   The record discloses, establishes and  discuss the fact that the patient EUO gave cause (allegedly) for the provider EUOs.  Yet, no discussion of that timeline was set forth in the motion (see Quality v. Utica – allowing the tolling of a provider EUO based upon a prior patient EUO).  I don’t get it.  the EUO process started before the received billing.  Had this been discussed, the 3.5(b) issue would be non-existent and I think the case would have been affirmed.

Also, did counsel discuss the one day off the back for each day between 15 business days and 30-calendar days?  I sense that discussion did not occur.

Point II

Now, a bad global denial is fatal? ” The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).”

It is like anything else – some cases need to settle.  This was one of them – watch the argument and you will see what I mean.  Luckily, Manoo settled or the First Department DJ as we know it would probably be dead.  That was a complete disaster in motion.

I think Defendant is entitled to attorney’s fees if the EIP was a driver or insured.

Many issues here will await another fully contested appeal.





EUO no-show: Declaratory Judgment substantiated

Hertz Vehs. LLC v Significant Care, PT, P.C., 2018 NY Slip Op 00456 (1st Dept. 2018)

The affidavit of the Hertz claims handler personally assigned to this claim, as corroborated by the NF-10 denial of claim form (Wausau Bus. Ins. Co. v 3280 Broadway Realty Co. LLC, 47 AD3d 549, 549 [1st Dept 2008]; see also American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 842 [1st Dept 2015]), stated that the date Pavlova’s bill was received by the insurer was July 18, 2014. Hertz therefore established its compliance with 11 NYCRR 65-3.5(b) by generating the first EUO scheduling letter within 15 days of receipt of the provider’s bill, and compliance with 11 NYCRR 65-3.6(b), by generating the second EUO scheduling letter less than 10 days after the first nonappearance on August 7, 2014.

Hertz also established proof of mailing because it included an affidavit of service, which was executed by the person who mailed the EUO notices and who attested that each was mailed by regular mail to the address provided on the claimant’s claim form, as well as to claimant’s attorney, in a “postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York” (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]; see also Deluca v Smith, 146 AD3d 732, 732 [1st Dept 2017]).

Pavlova’s argument, raised for the first time on appeal, that the second EUO nonappearance date was not a non-appearance because the claimant’s counsel was present, and because there was a statement on the record which not only acknowledged claimant’s nonappearance, but also agreed to reschedule the EUO, is unpreserved and unavailing.

Failure to cooperate

Country-Wide Ins. Co. v Gotham Med., P.C., 2017 NY Slip Op 07538 (1st Dept. 2017)

(1) “The refusal by defendant’s principal, Dr. Alexandre Scheer, to answer questions at an examination under oath (EUO) about his compliance with a consent agreement and order he had entered into with the Office of Professional Medical Conduct (OPMC) constituted a failure to comply with the request for an EUO, a condition precedent to coverage under the insurance policy (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]).”

This is the second time the Appellate Division opined on the issue of not answering questions at the EUO.  The intentional refusal to comply “voided” coverage.

(2) “Defendant also argues that plaintiffs had no independent right to determine whether Scheer was in compliance with the consent agreement and order and that any determination by them of noncompliance would not render him “unlicensed” to practice medicine. This argument is unavailing. The consent agreement and order provides that any medical practice in violation of the term permitting Scheer to practice only when monitored “shall constitute the unauthorized practice of medicine.” An unlicensed health care provider is ineligible to receive no-fault reimbursement (11 NYCRR 65-3.16[a][12]), and an insurer may make a good faith determination that a medical provider assignee seeking no-fault benefits is ineligible to receive such benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]).”

The facts on this one were highly advantageous to the insurance carrier.  You had a wounded warrior, tried to put the dagger into him and he refused to allow that to occur.

(3) “Defendant waived the defenses of res judicata and award and arbitration (CPLR 3211[e]; see Mayers v D’Agostino, 58 NY2d 696 [1982]). While the arbitral awards in its favor were not issued until after it had filed its answer in this action, there is no indication on the record before us that defendant ever moved to amend its answer to assert either of those defenses.”

I think this is the most important point to take from this case.  It is the danger of being forced to allow these matters to proceed to arbitration.

The sad man’s DJ

Mapfre Ins. Co. of N.Y. v Soltanov, 2017 NY Slip Op 31520(U)(Sup. Ct. NY Co. 2017)

We previously discussed that the poor man’s DJ that did not go over too well.  This is the sad man’s DJ.  I read the papers last weekend.  Justice Bluth, who is not afraid to call out fraud (V.S. Med. Servs., P.C. v. Allstate Ins. Co., 11 Misc. 3d 334, 335 [Civ. Ct. 2006], was not impressed either.

The allegations are far reaching and serious.  And to be honest, I would not be surprised if they may be true.   It pleads common law fraud and Mallela causes of action at its base.  Following that, it pleads causes of action based upon “self referral” and “independent contractor actions”.  The former is never actionable on a no-fault claim (Allstate Prop. & Cas. Ins. Co. v. New Way Massage Therapy P.C., 134 A.D.3d 495 [1st Dept 2015], leave to appeal denied, 28 N.Y.3d 909 [2016]).  The latter is only actionable if the claim is timely denied on that basis.

Thus, this is a Mallela and fraud case.

The evidence is the DOH admonishing Dr. Arguilles, SIU investigators discussing matters (some of which is clearly outside their expertise) and an expert who says the billing is fraudulent.  Missing was what you need to prove this type of case: EUO testimony and claims specific evidence to back up the allegations.  An expert who opines on matters without a factual basis is guilty of promoting junk science.    I learned that – in all places- at  matrimonial CLE.

For instance, I just read a Rico on an Allstate case.  Putting aside the substantive issue in that case of whether pattern act mail fraud was committed, presented was EUO testimony to attempt to prove some of the allegations presented in the complaint.

This DJ is based upon information and belief and innuendo.  So, while I give myself the title for the poor man’s DJ, this should get the award for the sad man’s DJ.

As a stay was not granted and discovery (should the matter survive a 3211[a][7] motion and appeal) will be ongoing, this looks to be an exercise in something.

The poor man’s DJ is no more

Fresh Acupuncture, P.C. v Interboro Ins. Co., 2017 NY Slip Op 27214 (App. Term 2d Dept. 2017)

The Appellate Term about seven years ago gave us  Five Boro Psychological Servs., P.C. v AutoOne Ins. Co., 27 Misc.3d 89 (App. Term 2d Dept. 89), which broadly gave Civil Court DJ jurisdiction for matters involving insurance companies where the amount in dispute is less than $25,000.   Today, that Court took it away from us.  So goes the “poor man” DJ, i.e., $45 for an index number, no motion fee and no RJI fee.

As to a background on this, we obtained a judgment from Supreme Court that various providers were not entitled to no-fault benefits for whatever the reason was.  We never knew about Fresh Acupuncture.  Remembering Five Boro, I said, lets bring a poor man’s DJ in Manhattan.  Apparently, this new panel of judges believe CCA 212-a should be given a narrow reading.  Well, what can I say, they wear the robes; I am just a practitioner who keeps a blog and writes tons of motions and appeals.

But I think the real issue here is with the trial de-novos that rumor has certain firms like to bring in Civil New York.  It would seem like the smart practitioner would default on those and move to confirm the underlying arbitration award in Civil Court, Queens County.

I have no real opinion as to whether this decision is “right” or “wrong”.  I think practically, the lower courts should all have broad subject matter jurisdiction of matters that is within their monetary limits.  I also think the concept of a Village Court and Town Court should be abolished.  Term limits would be nice.  Thus, I am voting to hold a constitutional convention this election day.

Manoo goes up

Mapfre Ins. Co. of N. Y. v Manoo, 2016 NY Slip Op 86914(U)(1st Dept. 2016)

“Defendant-respondent having moved for reargument of, or in the alternative, for leave to appeal to the Court of Appeals, from the decision and order of this Court, entered on June 9, 2016 (Appeal No. 126),

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, It is ordered that the motion, to the extent it seeks reargument, is denied. The motion, to the extent it seeks leave to appeal to the Court of Appeals, is granted and this Court, pursuant to CPLR 5713, certifies that the following question of law decisive of
the correctness of its determination, has arisen, which in its opinion ought to be reviewed by the Court of Appeals:

“Was the order of this Court, which reversed the order of the Supreme Court, properly made?”

This Court further certifies that its determination was made as a matter of law and not in the exercise of discretion.”