Peer report is sufficient to prima facie prove lack of serious injury (Ins Law Sec. 5102[d])

Fisher v Hill, 2014 NY Slip Op 00830 (4th Dept. 2014)

It is infrequent that I post on the serious injury threshold.  But a Plaintiff on a PI case that I am handling rejected a 3101(d) based upon the fact that our expert will be the classic peer reviewer.  He will look at the EBT testimony, medical records, Bill of Particulars and testify that Plaintiff did not sustain a “serious injury”  since the injuries were not causally related to the loss.

“In support of their motion, defendants submitted medical records and the affirmed report of a neuroradiologist who examined plaintiff’s medical records at defendants’ request.  The neuroradiologist concluded that the objective medical findings related only to a preexisting condition in plaintiff’s spine. “[W]ith persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition, plaintiff[s] had the burden to come forward with evidence addressing defendant[s’] claimed lack of causation” and, here, plaintiffs failed to meet that burden”

Attorney drafted 3101(d) in malpractice action insufficient to defeat summary judgment

Bacani v Rosenberg, 2014 NY Slip Op 00737 (1st Dept. 2014)

“As this Court previously found, the opinions of plaintiffs’ expert, Dr. Harrigan, failed to raise a triable issue, and plaintiffs’ submission of an attorney-drafted CPLR 3101(d) expert disclosure averring that an expert pathologist would testify concerning causation is not evidentiary proof in admissible form sufficient to defeat the subject motion for summary judgment (see e.g. Velasco v Green-Wood Cemetery, 48 AD3d 271, 272 [1st Dept 2008]).”

It is nice to see the court call out the “attorney drafted” affidavit of merit.  You know it when you see it, and the courts know it also.  Yet, they often allow these “documents” to be considered to defeat a summary judgment motion.  While this case will not be the death knell or the watershed moment for documents that doctor’s should not be signing, this is  a nice case to see.

The denial need not be authenticated as a busines record

Jesa Med. Supply, Inc. v NYC Tr. Auth., 2013 NY Slip Op 52007(U)(App. Ter 2d Dept. 2013)

“Contrary to plaintiff’s argument, defendant was not required to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. Defendant did not submit the denials as memoranda “of any act, transaction, occurrence, or event” recorded therein (CPLR 4518 [a]; see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).”

Claims documents considered as business records and unsuccessful mailing challenge

Preferred Mut. Ins. Co. v Donnelly, 2013 NY Slip Op 07283 (4th Dept. 2013)

(1) CPLR 4518 (a) challenge:

“We conclude that plaintiff met its initial burden of establishing that the lead exclusion was properly added to the policy and that notice of the lead exclusion amendment was provided to Donnelly. Contrary to Jackson’s contention, plaintiff submitted evidence in admissible form to support its motion. Although many of the documents appended to the attorney affirmation were not in admissible form (see KOI Med. Acupuncture v State Farm Ins. Co., 16 Misc 3d 1135[A], 2007 NY Slip Op 51705[U], *2; see generally CPLR 4518 [a]), we conclude that the affidavit from plaintiff’s Office Services Supervisor was sufficient to lay a proper foundation for the business records attached thereto (see CPLR 4518 [a]; cf. Unifund CCR Partners v [*2]Youngman, 89 AD3d 1377, 1378, lv denied19 NY3d 803; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331; see generally People v Kennedy, 68 NY2d 569, 579-580).”

(2) Mailing challenge:

This is interesting and should find its way in motions where mailing is challenged.  Perhaps another dilution in the “art” of mailing litigation, and I would argue a significant lowering of the mailing hurdle

“With respect to the substance of the attachments, we conclude that the documents established as a matter of law that the lead exclusion was properly added to Donnelly’s insurance policy and that Donnelly was notified of that amendment. Although plaintiff did not submit evidence that the notice of the amendment was mailed to Donnelly and Donnelly could not recall receiving the notice, plaintiff submitted evidence in admissible form “of a standard office practice or procedure designed to ensure that items are properly addressed and mailed,” thereby giving rise to a presumption that Donnelly received the notice (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680; see Nocella v Fort Dearborn Life Ins. Co. of N.Y., 99 AD3d 877, 878). Contrary to the contention of Jackson, the evidence submitted by plaintiff established that the “office practice [was] geared so as to ensure the likelihood that [the] notice[s of amendment] . . . [were] always properly addressed and mailed” (Nassau Ins. Co. v Murray, 46 NY2d 828, 830; see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 229-230; cf. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375). Specifically, the evidence established the procedure used by plaintiff for generating notices whenever an insurance policy was amended, and the documentary evidence established that a notice was generated for Donnelly’s policy during the year in which the lead exclusion was added to the policy. In addition, plaintiff submitted evidence that it placed the notices in envelopes with windows so that the address on the notice was the one used for mailing. The envelopes were then delivered to the mail room, where they were sealed and the appropriate postage was added. Thereafter, the mail was hand delivered to the post office that was located adjacent to plaintiff’s parking lot.”

“While we agree with the dissent that there was no evidence submitted of a practice to ensure that the number of envelopes delivered to the mail room corresponded to the number of envelopes delivered to the post office (see Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227, 228-229; Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375; cf. Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656), we do not deem the absence of such evidence fatal to plaintiff’s motion in light of the detailed description of all of the other office practices geared toward ensuring the likelihood that the notices were always properly addressed and mailed (cf. Hospital for Joint Diseases, 284 AD2d at 375; L.Z.R. Raphaely Galleries v Lumbermens Mut. Cas. Co., 191 AD2d 680, 681-682; Lumbermens Mut. Cas. Co., 135 AD2d at 374-375). Additionally, “[a]s long as there is adequate [evidence from] one with personal knowledge of the regular course of business, it is not necessary to solicit testimony from the actual employee in charge of the mailing” (Lumbermens Mut. Cas. Co., 135 AD2d at 375). Here, plaintiff submitted evidence from someone with personal knowledge concerning the specific procedures used by plaintiff to ensure that the addresses on the envelopes were accurate and concerning the “office procedures relating to the delivery of mail to the post office” (id.). In opposition to the motion, Jackson failed to raise a triable issue of fact “that [the] routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed” (Nassau Ins. Co., 46 NY2d at 830).”


Evidentiary issues in what appeared to be a personal grudge match at the 4th Department

Siemucha v Garrison, 2013 NY Slip Op 07608 (4th Dept. 2013)

Point #1:  Unsworn to chiropractic report (affidavit?) was proper because it was unobjected to (nothing new) and was based upon otherwise admissible hearsay (something new?)

“Defendants failed to preserve for our review their contention that the affirmed report of the chiropractor was not in admissible form (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 351 n 3; cf.Hartley v White, 63 AD3d 1689, 1690;Shinn v Catanzaro, 1 AD3d 195, 197-198). In any event, a plaintiff “may rely on unsworn reports and uncertified medical records if they were submitted by defendants . . . or were referenced in the reports of physicians who examined plaintiff on their behalf, and [defendants] submitted the reports of their experts” (Feggins v Fagard, 52 AD3d 1221, 1223; see Brown v Achy, 9 AD3d 30, 32). Here, defendants’ expert reviewed and referenced numerous [*2]medical records of plaintiff in his report, including the chiropractic records.”

Point 2: “objective proof of spasm in his cervical spine” is sufficient to demonstrate a serious injury

Point 3: A narrow 3101(d) can preclude otherwise relevent evidence.

“Defendants further contend that the evidence of plaintiff’s drug use was relevant to the claim of loss of enjoyment of life and plaintiff’s heart problems, but defendants’ expert disclosure did not include those topics, and the court therefore properly precluded defendants from presenting such evidence at trial (see generally Lidge v Niagara Falls Mem. Med. Ctr. [appeal No. 2], 17 AD3d 1033, 1035). Likewise, the court did not abuse its discretion in precluding defendants’ expert from testifying regarding his experience treating patients with pending litigation and a study concerning that subject matter inasmuch as those matters were not included in defendants’ expert disclosure ”

Point 4: Police Reports

“Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule, such as an admission (see Huff v Rodriguez, 45 AD3d 1430, 1432; Stevens v Kirby, 86 AD2d 391, 395). Here, however, inasmuch as “the source of the information was never identified,” the statement was not admissible as an admission (Huff, 45 AD3d at 1432)”

And why do you think the signature was stamped?

Alev Med. Supply, Inc. v Travelers Home & Mar. Ins. Co., 2013 NY Slip Op 51759(U)(App. Term 2d Dept. 2013)

“Plaintiff’s only argument, both before the Civil Court and on appeal, is that the peer review report relied upon by defendant contained a stamped signature and, as a result, it was inadmissible. We find that plaintiff’s assertion, without any indication as to why plaintiff believed that the signature was a stamped signature, was insufficient to raise an issue of fact (see Manhattan Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 127[A], 2011 NY Slip Op 51230[U] [App Term, 2d, 11th & 13th Jud Dists]).”

If Plaintiff was serious about this argument, they would have presented an affidavit from an appropriate expert explaining how they came to the conclusion that the signature was stamped.  As is always the case, this was not done here.

Amended motion/Admissible Reply papers/Defects in affidavits/delay letter vs. verification requests

Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 51266(U)(App. Term 2d Dept. 2013)

“Plaintiff opposed defendant’s motion, arguing that the IME doctor’s affidavit, which defendant had submitted in support of its IME nonappearance defense, was incomplete and unsigned, and cross-moved for summary judgment. Subsequently, defendant served what it denominated an amended motion for summary judgment, which included the IME doctor’s complete affidavit. Plaintiff submitted opposition thereto. The Civil Court deemed defendant’s amended motion to be its reply papers. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issues to be determined at trial were “proper notice of the IME, medical necessity and fee schedule.”

“In our opinion, the Civil Court properly considered defendant’s amended motion to be a reply since the substance of defendant’s papers was unchanged and the papers merely corrected a technical defect in the affidavit of defendant’s IME doctor (see CPLR 2001). Furthermore, plaintiff submitted a response to defendant’s reply papers (see Zernitsky v Shurka, 94 AD3d 875 [2012]; Hoffman v Kessler, 28 AD3d 718 [2006]).”

“[t]here was a discrepancy in the recitation by the IME doctor of the address at which the assignor was to have been examined.” (typographical error)

“A review of defendant’s letters to plaintiff reveals that the letters merely notified plaintiff that defendant was delaying consideration of the claims pending investigation into the motor vehicle accident at issue. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny those claims ” (A delay must ask for something)

“Contrary to the implicit determination of the Civil Court, the record shows that plaintiff did not establish its prima facie case ”

This case starts with some procedural history.  It then states that IME affidavits are not probative based upon inconsistencies and then it ends with a statement that a “delay letter” is insufficient to toll the period to pay or deny a claim.   Finally, the affidavit was insufficient to establish a business record foundation (CPLR 4518[a])


All you wanted to know about 4518(a) but were afraid to ask

All Borough Group Med. Supply, Inc. v Geico Ins. Co., 2013 NY Slip Op 23262 (App. Term 2d Dept. 2013)

“At the outset, we note that plaintiff was not required to lay a CPLR 4518 (a) foundation for the assignment of benefits form. An assignment of benefits is not hearsay; like a contract, it has independent legal significance and need only be authenticated to be admisible (sic)(see Kepner-Tregoe, Inc. v Leadership Software, Inc., 12 F3d 527, 540 [5th Cir 1994]; see also Beal-Medea Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51347[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). However, plaintiff was attempting to use the delivery receipt and claim form to prove the transactions recorded therein, and so was required to lay a CPLR 4518 (a) foundation for those records.”

“If a record is made in the regular course of business, it is the regular course of business to make the record, and the record is made at or about the time of the event being recorded, the record can be admitted into evidence pursuant to the CPLR 4518 (a) business records hearsay exception.” [Court gives you the questions to ask to lay a 4518(a) foundation.]

“A review of the evidence adduced at trial shows that plaintiff’s witness was employed by plaintiff prior to, during, and after the time that defendant had provided the supplies to plaintiff. The witness testified he and another person who was no longer employed by plaintiff had generated all of plaintiff’s claim forms, and that his father, who was the owner of plaintiff, had generated the delivery receipts. The witness also testified, albeit inartfully, that he was familiar with plaintiff’s office routine and that plaintiff’s delivery receipts and claim forms were routinely and contemporaneously made in the course of plaintiff’s business, and that it is plaintiff’s regular business practice to make such records.”

“In addition, CPLR 4518 (a) provides that a witness’s lack of personal knowledge affects the weight of the record, not the admissibility of the record.”

So consider this a basic evidence lesson from the Appellate Term.

No credentials? No issue of fact

Cruz v Martinez, 2013 NY Slip Op 03417 (1st Dept. 2013)

“Even if an anxiety disorder could constitute a serious injury within the meaning of the Insurance Law, the affidavit of Benjamin Hirsch, Ph.D., who evaluated Clark once, did not raise an issue of fact. Indeed, Hirsch, who did not set forth his expert credentials, noted that he did not perform any objective neuropsychological tests, since Clark did not describe any symptoms of neuropsychological distress”

Two problems here.  One, there was no discussion of the doctor’s credentials.  Perhaps a header stating that he is licensed or that he was a PH.D somewhere would have been sufficient.  Furthermore, the failure to examine a body part despite a claimant’s failure to state an injury to the body part is insufficient.


Peer hearsay

Kew Garden Imaging v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 50748(U)(App. Term 2d Dept. 2013)

“The Civil Court precluded defendant’s medical witnesses from testifying on the ground that those doctors could not testify as to the contents of the medical records they had reviewed in preparing their peer reviews.

As defendant’s doctors should have been permitted to testify (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip [*2]Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), a new trial is required.”

Peer hearsay.  The party that made the frivolous objection at trial should pay the cost for Defendant’s expert.