Preliminary injunction denied

American Commerce Ins. Co. v Francois, 2015 NY Slip Op 01594 (2d Dept. 2015)

Okay Oleg and Damin.  Good job.  Are you happy?  You (Oleg) claim that I never praise you when you win, so here you go.

“The plaintiff sought to temporarily restrain and preliminarily enjoin all no-fault actions arising from a car accident in which its insured allegedly was a driver. The plaintiff failed to establish a likelihood of success on the merits of its cause of action (see Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612; Matter of Related Props., Inc. v Town Bd. of Town/Vil. of Harrison, 22 AD3d 587, 590; Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 349-350), failed to demonstrate that it would suffer any imminent and nonspeculative harm in the absence of the requested injunctive relief (see County of Suffolk v Givens, 106 AD3d 943; Golden v Steam Heat, 216 AD2d 440, 442), and failed to demonstrate that any injuries it would suffer would not be compensable by money damages (see Rowland v Dushin, 82 AD3d 738; EdCia Corp. v McCormack, 44 AD3d 991, 994; Matter of Gandolfo v White, 224 AD2d 526, 528). The plaintiff also failed to establish that the equities balance in its favor (see McLaughlin, Piven, Vogel v Nolan & Co., 114 AD2d 165, 174). Accordingly, the Supreme Court properly denied those branches of the plaintiff’s motion which sought a temporary restraining order and a preliminary injunction.”

Wish I knew why this happened?

Declaratory judgment action (again) moots the underlying Civil Court action

Lms Acupuncture, P.C. v American Tr. Ins. Co., 2015 NY Slip Op 50198(U)(App. Term 2d Dept. 2015)

On May 8, 2013, the Supreme Court granted, on default, American Transit’s motion. By order entered June 7, 2013, the Civil Court denied LMS Acupuncture, P.C.’s motion for summary judgment, in light of the Supreme Court’s determination in the declaratory judgment action. On August 1, 2013, the Supreme Court signed a long-form order embodying its determination.

Based upon the declaratory judgment action in Supreme Court, the instant action is barred under the doctrine of res judicata…To hold otherwise could result in a judgment in the present action which would destroy or impair rights or interests established in the Supreme Court action.  We note that any contention that the Supreme Court’s May 8, 2013 determination was not a final disposition has been rendered moot by the entry of the August 1, 2013 long-form order.

This decision apparently allows a decision requiring the settlement of an order to serve to defeat a summary judgment motion.  Furthermore, the appeal of the Civil Court order allows a subsequently entered judgment to serve as grounds for reverse judgment.

Supplemental affirmation on a DJ case acceptable and res judicata mandates dismissal of complaint

Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 2014 NY Slip Op 51324(U)(App. Term 2d Dept. 2014)

This was proudly mine and another example of why it pays to put up a good fight as well as to be proceduraly savvy.

“Great Health Care Chiropractic, P.C. (Great Health) commenced this action on February 14, 2012 to recover assigned first-party no-fault benefits for services provided to its assignor as a result of injuries sustained in a motor vehicle accident on December 10, 2010. After issue had been joined, plaintiff moved for summary judgment, and defendant opposed the motion on the ground that plaintiff had failed to establish its prima facie case. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Great Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath (EUOs) and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Great Health as assignee of Kareem Lindsay arising out of the December 10, 2010 accident. Great Health asserted in its answer in Supreme Court that American Transit did not demonstrate good cause for requesting an EUO. The Supreme Court initially denied a motion by American Transit for, among other things, summary judgment but, upon reargument, granted the motion, finding that American Transit had demonstrated that it had timely mailed EUO scheduling letters to Great Health’s assignor; that the assignor had failed to appear for scheduled EUOs; and that Great Health had failed to raise a triable issue of fact in opposition to the motion. The Supreme Court awarded American Transit a declaratory judgment, dated January 25, 2013.

After being awarded the declaratory judgment, American Transit submitted, in this action, a supplemental affirmation by its counsel, in opposition to plaintiff’s motion for summary judgment, in which he argued that plaintiff’s action is barred by res judicata. By order entered February 28, 2013, the Civil Court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice. This appeal by plaintiff ensued.

 “(1) Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment.”

(2) “Moreover, the Civil Court properly determined that the action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]).”

(3) Defendant’s failure to serve the Supreme Court’s order upon plaintiff with notice of entry is not fatal, in view of the binding and conclusive effect of the order (see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co., ___ Misc 3d ___, 2014 NY Slip Op 24161 [App Term, 2d, 11th & 13th Jud Dists 2014]).

(4) While plaintiff argues that the Civil Court improvidently exercised its discretion in considering defendant’s untimely supplemental affirmation in opposition to plaintiff’s summary judgment motion, we reject this contention in view of the justification shown for the delay and plaintiff’s failure to demonstrate any prejudice arising therefrom (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874 [2011]; cfMosheyeva v Distefano, 288 AD2d 448 [2001]; Risucci v Zeal Mgt. Corp., 258 AD2d 512 [1999]). In view of the foregoing, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.”

Every time Rybak appeals, he just digs that hole a little deeper and a little wider.

 

Back when DJ’s roamed the earth

Ultimate Health Prods., Inc. v American Tr. Ins. Co., 2014 NY Slip Op 51321(U)(App. Term 2d Dept. 2014)

Good job to my colleague and friend James Sullivan on this one.

“Ultimate Health Products, Inc. (Ultimate Health) commenced this action in the Civil Court, Queens County, to recover assigned first-party no-fault benefits for supplies provided to its assignor as a result of injuries sustained in a motor vehicle accident. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Ultimate Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Ultimate Health as assignee of Carlos Martinez arising from the car accident in question. In December of 2011, plaintiff moved in the Civil Court for summary judgment. On May 15, 2012, the Supreme Court awarded American Transit a declaratory judgment on default. American Transit subsequently cross-moved in the Civil Court, pursuant to CPLR 3211 (a) (5), to dismiss plaintiff’s action, contending that this action is barred by virtue of the declaratory judgment. Plaintiff opposed defendant’s cross motion and now appeals from an order of the Civil Court, entered January 18, 2013, which implicitly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint.

The Supreme Court determined that Ultimate Health’s assignor was not an eligible injured person entitled to no-fault benefits under the applicable policy, and that American Transit was not obligated to pay claims submitted by Ultimate Health as assignee of Carlos Martinez in any current or future proceedings arising under that policy from the car accident in question. In light of the declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. [*2]Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). Plaintiff’s remaining arguments lack merit or were not preserved for appeal.”

This is from back when the good guys had the stage and providers had to earn their money.

EUO no show sustained

American Tr. Ins. Co. v Cartagena,  2014 NY Slip Op 31696(U)(Sup. Ct. NY Co. 2014)

“Plaintiff AMERICAN TRANSIT INSURANCE COMPANY in this  declaratory judgment action moves for a summary judgment for the  relief demanded in the Complaint pursuant to CPLR 3212 in its  favor against defendant LONGEVITY MEDICAL SUPPLY, INC. based upon  the failure to provide duly scheduled “Examinations Under Oath”  of defendant assignor REMANSIA CARTAGENA, an individual who

assigned to defendant LONGEVITY MEDICAL SUPPLY, INC., a  medical/health care provider, his/her right to be reimbursed for  benefits under the No-Fault law~ for the expenses of treatment  for injuries suffered in an automobile accident on November 20,  2011.
As held by the First Department in Unitrin Advantage Ins Co  v Bayshore Physical Therapy, 82 AD3d 559, 560 (1st Dept 2011): The failure to appear for [EUOs] requested by the insurer  ” … as … may reasonably [be] require[d]” (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the no-fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v Chubb Group of Ins. Cos. ( 90 NY2d 195 · [1997] ) .

As in Unitrin, here “plaintiff has satisfied its prima facie burden on summary judgment of establishing that it requested (EUOs) in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants’ assignors did not appear. In opposition, defendants failed to raise an issue of fact that the requests were unreasonable”. “The affidavit of service raised a presumption that a·proper mailing occurred, which defendants failed to rebut” (American Transit Insurance Company v Marte-Rosario, 11 AD3d 442 [1st Dept 2013]) . Finally, Cambridge Medical, P.C. v  Progressive Casualty Ins. Co., 29 Misc3d 186 (NYC Civil Co,  Richmond Co 2010), an opinion of coordinate jurisdiction not binding on this court, stands only for the proposition that  under 11 NYCRR 65-3.6, the insurer may send the notice for follow  up verification to the insurer, as assignee, and is not required to so notice the injured party. In addition, Cambridge interprets a rule separate from 11 NYCRR 65-1.1 with respect to  Examinations Under Oath (EUO), the rule at issue here”

 

The Defendant walked into oral argument according to my report with a case called Cambridge v. Progressive and said that our Dec action was invalid.   I barely recalled Judge Levine’s case as she writes so many.  I look it up and told my attorney if the judge was considering this act of desperation.  He laughed.  I am glad the judge realized this was smoke in mirrors.

Trial De Novo reqires each award to be equal to or greater than $5000

Imperium Ins. Co. v Innovative Chiropractic Servs., P.C, 2014 NY Slip Op 50697(U)(App. Term 1st Dept. 2014)

The plaintiff insurer commenced the underlying actions, consolidated below, seeking declaratory relief and review by way of trial de novo of five separately issued master arbitrator’s awards issued in favor of defendant medical providers on their claims for first-party no-fault benefits. While Civil Court had jurisdiction to entertain the lawsuit (see CCA 212-a; Brooks v Rivera, 40 Misc 3d 133[A], 2013 NY Slip Op 51191[U] [App Term, 1st Dept 2013]), we sustain the dismissal of the consolidated actions on the merits. De novo review of a master arbitrator’s award is limited to the grounds set forth in CPLR article 75 unless the award is in the amount of $5,000 or more, in which case the dispute is subject to a “plenary judicial adjudication” pursuant to Insurance Law § 5106(b) (see Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 576-577 [1987])

Compare this to: Liberty Mut. Ins. Co. v Bayside Pain & Rehabilitation Medicine, P.C., 39 Misc.3d 148(A)(App. Term 2d Dept. 2013)(construing DISTRICT COURT act).  I am curious why the Legislature gave a broader grant of jurisdiction in the NYCCCA as opposed to the UDCA.  As to the $5,000 rule, my only remark is that the Appellate Term has now incentivized the splitting of no-fault billings to avoid eventual de-novo review.

Disagreement with the law does not raise an issue of fact

American Tr. Ins. Co. v. Plummer, Index #: 153300/12 (Sup. Ct NY Co. 2014)

“Defendants’ arguments, inter alia that Unitrin was wrongly decided fail to raise any triable issue of fact.  Discovery will not change the fact that Plummer failed to appear at the duly scheduled IMEs.  Settle judgment on notice.”

This says so much in two sentences.

Declaration of non-coverage granted

American Transit Ins. Co. v. Lawal, Index #: 152405/12 (Sup. Ct. NY Co. 2013)

American Transit Ins. Co. v. Devine, Index #: 150505/12 (Sup. Ct. NY Co. 2013)

The usual arguments by the usual suspects does not bear fruit today.  In thorough decisions, Justice Madden explains why a declaration of non-coverage against Defendants is appropriate.

DJ granted – Defendant failed to present evidence that Defendant attended IME

American Tr. Ins. Co. v Urena, 2013 NY Slip Op 31751(U)(Sup Ct. NY CO. 2013) ** American Transit is represented by Law Offices of James F. Sullivan, P.C. **

Here is the most important of the case: “The cross-moving papers show that the letters scheduling the IMEs were properly addressed (to both Urena at the address given and to her attorneys) and mailed (exh I). Dr. Santiago’s affidavit establishes that he was there at the time and place noticed for both IMEs but that Urena did not appear for either exam (exh J). While Dr. Santiago does not explain how he remembers, or what records he reviewed to determine that Urena never appeared, Dr. Santiago did submit an affidavit. And that affidavit has not been contradicted by the movant. Plaintiff has submitted proof that Urena did not appear for either exam and movant has not submitted any proof that she did appear.”

Invariably, defense counsel in her diatribe stated that Plaintiff did not present any records, time stamped documents, and could never recall that this Defendant did not appear on a given date and time.  Again, a Supreme Court Justice says: show me proof that Defendant did show up.  And as is usually the case, Defendant could not present a scintilla of proof on this score.

 

Res Judicata through a DJ

A winner of the much vaunted Mr. Five Boro award.  An award granted only to the most deserving in our area of jurisprudence.    Ms. Ava Acupuncture has done the Mr. Five Boro award proud.  Cheers.

Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50233(U)(App. Term 2d Dept. 2012)

“By order dated October 26, 2007, the Supreme Court granted defendant’s motion for entry of a declaratory judgment, on default, declaring that defendant had “no present or future obligation to furnish benefits under the Mandatory Personal Injury Protection coverage” to the parties named as defendants in the declaratory judgment action.”

“Based upon the October 26, 2007 order of the Supreme Court, the instant action is barred under the doctrine of res judicata (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]; Pomona Med. Diagnostics, P.C. v Metropolitan Cas. Ins. Co., 29 Misc 3d 138[A], 2010 NY Slip Op 52039[U] [App Term, 1st Dept 2010]). To hold otherwise could result in a judgment in the instant action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff’s contention, the 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”