The vague and conclusory denial again

Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co., 2014 NY Slip Op 01166 (2d Dept. 2014)

“However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the subject claim (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). The defendant submitted evidence showing that it mailed to the plaintiff a denial of claim form NF-10 within the requisite 30-day period (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[c]). Although the denial of claim form incorrectly stated the amount of the claim and the amount in dispute, under the circumstances of this case, these minor errors did not render the denial fatally defective and a nullity

“Contrary to the plaintiff’s contention, the fact that the defendant attached to its denial of claim form an unaffirmed and unsworn peer review report, which contained a stamped facsimile of the physician’s signature and did not comply with CPLR 2106, did not render the denial of claim ineffective, since the defendant was not obligated to submit the peer review report in the first instance (see CPLR 2106; cfVista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778). The relevant no-fault regulations do not require that a denial of claim form be supported by a peer review report or other medical evidence at the time that the denial of claim form is issued (cf. 11 NYCRR 65-3.8). Indeed, this Court has previously held that a defendant is not required to set forth a medical rationale in its denial of claim form”

(1) The denial with the incorrect information is sufficient to avoid preclusion.  It appears that this case rehashes 65-3.8(h): “With respect to a denial of claim (NYS Form N-F 10), an insurer’s non-substantive technical or immaterial defect or omission shall not affect the validity of a denial of claim. This subdivision shall apply to medical services rendered, and to lost earnings and other reasonable and necessary expenses incurred, on or after April 1, 2013.”

(2) AB v. Liberty is re-affirmed.  There is no  news on this front.  I am curious why this argument was made and why Supreme Court accepted it.

 

Lawyer who tried to do his job but failed? Fine: $10,000

Aloi v. Ellis, 2012 NY Slip Op 04864 (4th Dept. 2012)

More craziness from the Court that is headquartered in Rochester.  Well, perhaps some sanity.

“In this personal injury action arising out of a motor vehicle accident, defendants appeal from an order that imposed a $10,000 sanction against the law firm of the attorney who represented defendants at a bifurcated trial on liability. According to Supreme Court, defendants’ attorney engaged in frivolous conduct within the meaning of 22 NYCRR 130-1.1 by failing to concede liability at trial and by pursuing a meritless affirmative defense of comparative negligence. As a preliminary matter, we note that, although defendants’ notice of appeal recites that defendants are appealing from the order, they in fact are not aggrieved by the imposition of sanctions against their attorney’s law firm (see Moore v Federated Dept. Stores, Inc., 94 AD3d 638, 639). Nevertheless, the notice of appeal may be deemed to have been filed on behalf of the nonparty law firm (see CPLR 2001; Matter of Tagliaferri v Weiler, 1 NY3d 605, 606; Joan 2000, Ltd. v Deco Constr. Corp., 66 AD3d 841, 842).

Oh so what did this firm do that was so wrong?

“With respect to the merits, we conclude that the court abused its discretion in imposing sanctions against the law firm of defendants’ attorney. Although the circumstances of the accident established that defendant Arlee Ellis was the more culpable party, “there can be more than one proximate cause of an accident, and . . . the fact that [a driver] failed to stop at [a] stop sign is not dispositive of the issue [of the comparative negligence of the other driver]” (Deshaies v Prudential Rochester Realty, 302 AD2d 999, 1000; see Cox v Nunez, 23 AD3d 427, 427). Even where, as here, a driver negligently fails to yield the right-of-way, an oncoming driver may [*2]be guilty of some degree of comparative negligence where, e.g., he or she had time to take evasive action but failed to do so (see e.g. Dorr v Farnham, 57 AD3d 1404, 1405-1406; Cooley v Urban, 1 AD3d 900, 901).”

Procedrually though, this case is interesting for another reason.  A law firm that is sanctioned for “frivilous conduct” must appeals a non-party.

5520 applies to reargument orders that were never appealed

People v Johnson, 2012 NY Slip Op 02213 (4th Dept. 2012)

“Following entry of the order granting that part of defendant’s motion, the People moved for leave to reargue with respect thereto. The court granted the People’s motion insofar as it sought leave to reargue and adhered to its prior determination. The People appealed from the original order and failed to appeal from the subsequent order entered on reargument, which superseded the original order (see Loafin’ Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985). We exercise our discretion to treat the notice of appeal as one taken from the subsequent order (see CPLR 5520 [c]; see e.g. Kanter v Pieri, 11 AD3d 912, 912).”

I learn something new every day.

Progressive wins the Mr. Five Boro award today

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 2012 NY Slip Op 50151(U)(App. Term 2d Dept. 2012)

If it could go wrong it did.  There was probably no point of appealing this one.  Ask yourself this question: If you had to pay $1,500 to create a reproduced record, would you spend your client’s money on these facts?  The answer is probably obvious.

“However, in support of its motion for summary judgment dismissing the complaint, defendant also submitted two peer review reports of its chiropractor, to which plaintiff objected in its opposing papers on the ground that the reports were not in proper form, as they were affirmed (see CPLR 2106; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Although one of the peer review reports contained a notary public’s stamp and signature, it contained no attestation that the chiropractor had been duly sworn or that she had appeared before the notary public (see New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b). Moreover, even if the documents submitted by defendant’s chiropractor had been in proper form, the affidavit of plaintiff’s osteopath submitted in opposition to defendant’s motion for summary judgment would have been sufficient to rebut the peer review reports and raise a triable issue of fact.”

The failure to assert why the signature was stamped will not invalidate an affirmation

Manhattan Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 51230(U)(App. Term 2d Dept. 2011)

“In opposition to the motion, plaintiff failed to raise a triable issue of fact with respect to the first and third causes of action since plaintiff failed to submit an affirmation from a doctor rebutting the conclusions set forth in the peer review reports (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). While plaintiff asserted that Dr. Schechter’s peer review report contained a stamped signature and, as a result, the peer review report was inadmissible, that assertion, without any indication as to why plaintiff believed that the signature was a stamped facsimile signature, was insufficient to raise an issue of fact (see Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 27 Misc 3d 128[A], 2010 NY Slip Op 50587[U] [App Term, 2d, 11th & 13th Jud Dists 2010]”

More on defective denials

St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 2011 NY Slip Op 01828 (2d Dept. 2011)

“The plaintiff, St. Vincent’s Hospital & Medical Center, as assignee of Tula Huillca, demonstrated its prima facie entitlement to judgment as a matter of law. While the defendant insurer timely issued two denials of claim within 30 days of its receipt of the completed hospital facility forms (NYS Form N-F 5), those denials of claim, which incorrectly stated the amount of the bill and the amount in dispute, and incorrectly listed Tula Huillca as the applicant for benefits instead of the plaintiff, were fatally defective

So the insurer gets punished because it put the UB-92 value on the NF-10 instead of the DRG value, and listed the assignee as the applicant.  Is this really fair?  Seriously?  They need to wake up (a bit) on Monroe Place.

EBT transcript invalid because it was not mailed to plaintiff (CPLR 3117)

Marmer v IF USA Express, Inc., 2010 NY Slip Op 04151 (2d Dept. 2010)

“Further, the unsigned deposition transcript of the plaintiff, which the defendants submitted in support of their motion, did not constitute admissible evidence in light of the defendants’ failure to demonstrate that the transcript was forwarded to the plaintiff for her review pursuant to CPLR 3116(a)(see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos v Intown Assoc., 17 AD3d 564).”

This decision is wrong for a few reasons.  First, the cases that  the Appellate Division cites to involve non-party depositions.  Second, the law as it relates to party depositions, as the Second Department previously held in R.M. Newell Co., Inc. v. Rice, 236 AD2d 843 (2d Dept. 1997), states the following:

“The court properly considered Richard Newell’s deposition in support of defendants’ motions for summary judgment. The transcripts were certified as accurate by the court reporter, who sent them to the witness for his review and signature. Thus, pursuant to CPLR 3116(a), the deposition is usable as though signed. In any event, any statutory proscription against the use of a transcript as a “deposition” would not preclude its use as an admission of plaintiff’s controlling principal. CPLR 3212(b) states that “written admissions” may be submitted on a summary judgment motion. Further, rules of evidence provide for admissibility of admissions of an opposing party regardless of whether they are in the form of a deposition. Thus, irrespective of whether it qualified as a “deposition” under CPLR 3116, the transcript constituted proof in admissible form ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).”

Can an admission not be used against a plaintiff on a summary judgment motion due to the failure to comply with CPLR 3116?  Has this rule now changed?  Does this make sense?

It is back: A framed issue hearing for "faxed, copied, stamped or electronically signed" documents

Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 2010 NY Slip Op 20131 (App. Term 2d Dept. 2010)

“While the motion for summary judgment could simply be denied due to the existence of such an issue of fact, we are of the [*2]opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the signature upon plaintiff’s doctor’s “affirmation,” which will determine whether the “affirmation” was in admissible form (see also Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, whether defendant’s prima facie showing upon its cross motion was rebutted.”

Dave Gottlieb over at NFP commented on this one.  I will add that this case is now at odds with the recently decided case of Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 2010 NY Slip Op 50587(U)(App. Term 2d Dept. 2010). Will somebody on the 15th Floor at 141 Livingston Street make up their mind with how this issue should be resolved?

Please.  My work flow is being impacted!

It is back: A framed issue hearing for “faxed, copied, stamped or electronically signed” documents

Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 2010 NY Slip Op 20131 (App. Term 2d Dept. 2010)

“While the motion for summary judgment could simply be denied due to the existence of such an issue of fact, we are of the [*2]opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the signature upon plaintiff’s doctor’s “affirmation,” which will determine whether the “affirmation” was in admissible form (see also Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, whether defendant’s prima facie showing upon its cross motion was rebutted.”

Dave Gottlieb over at NFP commented on this one.  I will add that this case is now at odds with the recently decided case of Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 2010 NY Slip Op 50587(U)(App. Term 2d Dept. 2010). Will somebody on the 15th Floor at 141 Livingston Street make up their mind with how this issue should be resolved?

Please.  My work flow is being impacted!

A conclusory statement is insufficient to raise an issue of fact that a signature was "faxed" or "electronic"

In another care where I was the Respondent – I sometimes win these motions in the Civil Courts – Plaintiff appealed the finding of the Civil Court that I presented admissible evidence to demonstrate the supplies were not medically appropriate.  However, you will not get the full history of the case from reading the opinion.  I will give it to you here.

I moved for summary judgment on the basis that the supplies lacked medical necessity.  The propounded medical evidence consisted of an affirmed peer report and the documents that were relied upon.  A separate affirmation attesting to the fact that the peer review was the doctor’s executed document was not included.  This was inadvertent on my part.

Plaintiff opposed on the sole ground that the peer doctor’s signature was faxed or computer generated.

I replied and included an affirmation of the peer review doctor saying otherwise.

Civil Court granted me summary judgment based upon my tendering of admissible evidence to demonstrate that the supplies were not medically appropriate.

Plaintiff appealed.  His main contention on appeal was that the reply consisted of new evidence that should not have been considered.  My answering brief said that Plaintiff was wrong, and I included cases that were on point.

The Appellate Term affirmed the finding of the Civil Court, but for reasons that were different from those of the Civil Court.  The Appellate Term quoted a case that they decided after the submission of the briefs in the case, entitled “Eden Med., P.C. v Eveready Ins. Co.”.

Consequently, Plaintiff’s objections to the evidence set forth in the Reply was rendered academic since he failed to offer evidence stating that the peer reviewer’s signature on the underlying peer review was not holographic.

Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 2010 NY Slip Op 50587(U)(App. Term 2d Dept. 2010)

“However, in the instant case, plaintiff’s mere conclusory assertion that the peer review report contained a stamped or facsimile signature, without any indication as to why [*2]plaintiff held such belief, was insufficient to raise an issue of fact (see Eden Med., P.C. v Eveready Ins. Co., 26 Misc 3d 140[A], 2010 NY Slip Op 50265[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In view of the foregoing, we need not consider any issues raised in defendant’s
reply papers.”