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”

The Civil Court – in case you did not know – has limited declaratory judgment powers

Five Boro Psychological Servs., P.C. v AutoOne Ins. Co., 2010 NY Slip Op 20131 (App. Term 2d Dept. 2010)

“In any event, the Civil Court would have subject matter jurisdiction in a declaratory judgment involving an obligation of an insurer in which the underlying amount sought to be recovered did not exceed $25,000.”

Dave Gottlieb at NFP has an interesting observation about this case.

Collateral estoppel in the declaratory judgment action does not necessarily apply to the underlying no-fault action

Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 20130 (App. Term 2d Dept. 2010)

“Plaintiff herein was neither named nor served in the declaratory judgment actions nor, at the time, was it in privity with someone who was, and plaintiff otherwise had no full and fair opportunity to appear and defend its interests in those proceedings. Accordingly, the judgments do not collaterally estop plaintiff from recovering in this action (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Mid Atl. Med., P.C. v Victoria Select Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51758[U] [App Term, 2d & 11th Jud Dists 2008]; see also Green v Santa Fe Indus., 70 NY2d 244, 253 [1987]). Moreover, as the declaratory judgments were obtained on default, there was no actual litigation of the issues and, therefore, no identity of issues”

Much can be said about this case.  Had Plaintiff Assignee been named and a default was entered, then this would be a closer call.  My concern about this case is the line “[n]or, at the time, was it in privity with someone who was…”

Assume that Claimant, after executing an assignment, violates one of the several conditions precedent to coverage, and the claims are timely and properly denied based upon a violation of a condition precedent to coverage.  I am thinking of  IME no-shows, EUO no-shows and possibly the 30-day written notice rule.

I would posit that those defenses would not apply if the majority’s privity rule is taken to its logical conclusion.  I also have grave reservations about the applicability of the “standing in the shoes” rule, which the Appellate Division, Second Department has asserted numerous times in these types of cases.

Justice Golia’s dissent, besides recounting a fact pattern that leads the reader to the conclusion that the accidents in this matter were intentional and probably offends most people on both sides of the bar, makes some good points.  He pretty much says what I have said above and have always believed, to wit, that the no-fault law and regulations somewhat modify the traditional notions of the common law assignment.

The Courts realize this fact and even said so in A&S Medical, P.C. v. Allstate Ins. Co., 196 Misc.2d 322 (App. Term 1st Dept. 2003), aff’d, 15 AD3d 170 (1st Dept. 2005), whose ultimate outcome I agreed with, when the following was held: “To the extent defendant seeks to invoke the general rule that an assignee is subject to the same defenses as would be available against its assignor (see, General Obligations Law § 13-105), the rule, as codified, finds no application in circumstances where, as here, the assigned claim is “regulated by special provision of law” (id.).

I tend to believe that this case probably should not be appealed any further since the Plaintiff Assignee providers were not named in the complaint.  This is an issue, however, that on proper papers needs to be addressed by the Appellate Division.