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.”

Those promised framed issue hearings on "stamped signature" cases were quite short lived

Amercure Acupuncture, P.C. v GEICO Ins. Co., 2010 NY Slip Op 20098 (App. Term 2d Dept. 2010)
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2008-2041 Q C.

Opinion withdrawn from publication in the Miscellaneous Reports at the direction of the court.

I think Gottlieb at NFP captured this case before it was assassinated.

In short, the Appellate Term proposed framed issue hearings on whether a signature was stamped, faxed or affixed in a non-holographic manner, in order to resolve this issue when raised in a summary judgment motion.  I suspect someone at OCA or some of the administrative judges placed a few phone calls to the panel of Justices on this case, and now this proposed remedy is void ab initio.  In my opinion, the holding of a framed issue hearing is not the worst the idea in the world.  Why don’t they have a designated JHO part, like they have in Supreme Kings for these types of hearings?

As the law stands, based upon the last published pronouncement of the Appellate Term, the objector must present some evidence to show that the affixed signature is stamped in order to defeat a motion on this ground.

_____________________________________________________________________________________________________

FURTHER RESEARCH REVEALS THAT THIS CASE HAS NOT BEEN REMOVED FROM WESTLAW (YET).  Here it is:

Amercure Acupuncture, P.C. v. Geico Ins. Co., 2010 N.Y. Slip Op. 20098 March 16, 2010 (Approx. 1 page)

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.
Amercure Acupuncture, P.C. as assignee of WILLIAMS STACEONA, Respondent,
v.
GEICO Ins. Co., Appellant.

2008-2041 Q C.Supreme Court of the State of New York Appellate Term: 2nd, 11th And 13th Judicial Districts

Decided on March 16, 2010

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 3, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 3, 2008 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $475.20.
OPINION OF THE COURT

ORDERED that the judgment is reversed without costs, the order entered October 3, 2008 is vacated, the branches of plaintiff’s motion seeking summary
judgment upon the first, second and third causes of action are denied, the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, second
and third causes of action are granted and the matter is remitted to the Civil Court for a hearing in accordance herewith and a new determination thereafter upon the branch of the motion and the branch of the cross motion, each seeking summary judgment upon the fourth cause of action.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that, with respect to the acupuncture services at issue in the first, second and third causes of action, it had timely paid plaintiff the amount to which plaintiff was entitled for such acupuncture services pursuant to the fee schedule applicable to chiropractors who render the same services, and that it had timely denied the amounts sought in excess of the fee schedule for the services included in these causes of action. Defendant further sought summary judgment dismissing plaintiff’s fourth cause of action on the ground of lack of medical necessity. The Civil Court granted plaintiff’s motion for summary judgment, determining that defendant had failed to establish that it had timely denied plaintiff’s claims. Defendant appealed from the order granting plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).
Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established *2 that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we turn to defendant’s opposition papers to determine whether defendant demonstrated the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
In opposition to plaintiff’s motion and in support of the cross motion, defendant established that it had timely mailed its denial of claim forms, by submitting an affidavit of an employee with knowledge of defendant’s standard office practices or procedures designed to ensure that the items were properly addressed and mailed (see e.g. St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As defendant further demonstrated that it had timely paid the acupuncture claims at issue in the first, second and third causes of action in accordance with the fee schedule applicable to chiropractors who render the same services, defendant is entitled to summary judgment dismissing those causes of action (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).
In opposition to the branch of plaintiff’s motion seeking summary judgment upon the fourth cause of action and in support of the branch of its cross motion seeking summary judgment upon that cause of action, defendant submitted an “affirmed” report by its doctor who had performed an independent medical examination (IME) of plaintiff’s assignor, to establish that the acupuncture services rendered thereafter by plaintiff were not medically necessary. However, plaintiff alleged, before the Civil Court and on appeal, that the IME doctor’s “affirmed” report is not admissible because it impermissibly bears a stamped facsimile of the doctor’s signature. We recognize that such an allegation, when properly asserted, ordinarily raises an issue of fact that cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). While the branch of plaintiff’s motion and the branch of defendant’s cross motion, each seeking summary judgment on the fourth cause of action, could simply be denied due to the existence of such issue of fact, we are of the 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 defendant’s doctor’s “affirmed” IME report. Such hearing will allow the court to determine whether the report was in admissible form (see also Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, enable the court to resolve the remaining branch of the motion and the remaining branch of the cross motion on their merits.
Accordingly, the judgment is reversed, the order entered October 3, 2008 is vacated, the branches of plaintiff’s motion seeking summary judgment upon the first, second and third causes of action are denied, the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, second and third causes of action are granted, and the matter is *3 remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine the admissibility of the IME report and for a new
determination thereafter of the branch of the motion and the branch of the cross motion, each seeking summary judgment upon the fourth cause of action.
Rios, J.P., Pesce and Steinhardt, JJ., concur.

Those promised framed issue hearings on “stamped signature” cases were quite short lived

Amercure Acupuncture, P.C. v GEICO Ins. Co., 2010 NY Slip Op 20098 (App. Term 2d Dept. 2010)
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2008-2041 Q C.

Opinion withdrawn from publication in the Miscellaneous Reports at the direction of the court.

I think Gottlieb at NFP captured this case before it was assassinated.

In short, the Appellate Term proposed framed issue hearings on whether a signature was stamped, faxed or affixed in a non-holographic manner, in order to resolve this issue when raised in a summary judgment motion.  I suspect someone at OCA or some of the administrative judges placed a few phone calls to the panel of Justices on this case, and now this proposed remedy is void ab initio.  In my opinion, the holding of a framed issue hearing is not the worst the idea in the world.  Why don’t they have a designated JHO part, like they have in Supreme Kings for these types of hearings?

As the law stands, based upon the last published pronouncement of the Appellate Term, the objector must present some evidence to show that the affixed signature is stamped in order to defeat a motion on this ground.

_____________________________________________________________________________________________________

FURTHER RESEARCH REVEALS THAT THIS CASE HAS NOT BEEN REMOVED FROM WESTLAW (YET).  Here it is:

Amercure Acupuncture, P.C. v. Geico Ins. Co., 2010 N.Y. Slip Op. 20098 March 16, 2010 (Approx. 1 page)

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.
Amercure Acupuncture, P.C. as assignee of WILLIAMS STACEONA, Respondent,
v.
GEICO Ins. Co., Appellant.

2008-2041 Q C.Supreme Court of the State of New York Appellate Term: 2nd, 11th And 13th Judicial Districts

Decided on March 16, 2010

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 3, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 3, 2008 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $475.20.
OPINION OF THE COURT

ORDERED that the judgment is reversed without costs, the order entered October 3, 2008 is vacated, the branches of plaintiff’s motion seeking summary
judgment upon the first, second and third causes of action are denied, the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, second
and third causes of action are granted and the matter is remitted to the Civil Court for a hearing in accordance herewith and a new determination thereafter upon the branch of the motion and the branch of the cross motion, each seeking summary judgment upon the fourth cause of action.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that, with respect to the acupuncture services at issue in the first, second and third causes of action, it had timely paid plaintiff the amount to which plaintiff was entitled for such acupuncture services pursuant to the fee schedule applicable to chiropractors who render the same services, and that it had timely denied the amounts sought in excess of the fee schedule for the services included in these causes of action. Defendant further sought summary judgment dismissing plaintiff’s fourth cause of action on the ground of lack of medical necessity. The Civil Court granted plaintiff’s motion for summary judgment, determining that defendant had failed to establish that it had timely denied plaintiff’s claims. Defendant appealed from the order granting plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).
Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established *2 that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Inasmuch as defendant raises no other issue with respect to plaintiff’s prima facie case, we turn to defendant’s opposition papers to determine whether defendant demonstrated the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
In opposition to plaintiff’s motion and in support of the cross motion, defendant established that it had timely mailed its denial of claim forms, by submitting an affidavit of an employee with knowledge of defendant’s standard office practices or procedures designed to ensure that the items were properly addressed and mailed (see e.g. St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As defendant further demonstrated that it had timely paid the acupuncture claims at issue in the first, second and third causes of action in accordance with the fee schedule applicable to chiropractors who render the same services, defendant is entitled to summary judgment dismissing those causes of action (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).
In opposition to the branch of plaintiff’s motion seeking summary judgment upon the fourth cause of action and in support of the branch of its cross motion seeking summary judgment upon that cause of action, defendant submitted an “affirmed” report by its doctor who had performed an independent medical examination (IME) of plaintiff’s assignor, to establish that the acupuncture services rendered thereafter by plaintiff were not medically necessary. However, plaintiff alleged, before the Civil Court and on appeal, that the IME doctor’s “affirmed” report is not admissible because it impermissibly bears a stamped facsimile of the doctor’s signature. We recognize that such an allegation, when properly asserted, ordinarily raises an issue of fact that cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). While the branch of plaintiff’s motion and the branch of defendant’s cross motion, each seeking summary judgment on the fourth cause of action, could simply be denied due to the existence of such issue of fact, we are of the 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 defendant’s doctor’s “affirmed” IME report. Such hearing will allow the court to determine whether the report was in admissible form (see also Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, enable the court to resolve the remaining branch of the motion and the remaining branch of the cross motion on their merits.
Accordingly, the judgment is reversed, the order entered October 3, 2008 is vacated, the branches of plaintiff’s motion seeking summary judgment upon the first, second and third causes of action are denied, the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, second and third causes of action are granted, and the matter is *3 remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine the admissibility of the IME report and for a new
determination thereafter of the branch of the motion and the branch of the cross motion, each seeking summary judgment upon the fourth cause of action.
Rios, J.P., Pesce and Steinhardt, JJ., concur.

It takes more than a mere allegation that a signature is not holographic in order to invoke the "stamped signature" rule. Also, a form defect can be fixed in reply.

It looks as if an objector to a stamped signature or a computer generated signature needs to present some evidence that the signature is not holographic in order to raise an issue of fact.  Eden Med., P.C. v Eveready Ins. Co., 2010 NY Slip Op 50265(U)(App. Term 2d Dept. 2010).  Equally as important is that the defect may be cured in a reply.

“When an allegation that a peer review report contains a stamped signature of the peer reviewer is properly asserted, it generally cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment, because an issue of fact exists (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). However, in the instant case, plaintiff’s mere assertion that the peer review report contained a stamped facsimile signature, without any indication as to why it believes the signature is a stamped facsimile signature, is insufficient to raise an issue of fact. In any event, in [*2]reply, defendant submitted an affidavit from the peer reviewer in which she stated that she had “personally applied the signature on the peer review report.” In light of the foregoing, the order, insofar as appealed from, is affirmed.”

It takes more than a mere allegation that a signature is not holographic in order to invoke the “stamped signature” rule. Also, a form defect can be fixed in reply.

It looks as if an objector to a stamped signature or a computer generated signature needs to present some evidence that the signature is not holographic in order to raise an issue of fact.  Eden Med., P.C. v Eveready Ins. Co., 2010 NY Slip Op 50265(U)(App. Term 2d Dept. 2010).  Equally as important is that the defect may be cured in a reply.

“When an allegation that a peer review report contains a stamped signature of the peer reviewer is properly asserted, it generally cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment, because an issue of fact exists (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). However, in the instant case, plaintiff’s mere assertion that the peer review report contained a stamped facsimile signature, without any indication as to why it believes the signature is a stamped facsimile signature, is insufficient to raise an issue of fact. In any event, in [*2]reply, defendant submitted an affidavit from the peer reviewer in which she stated that she had “personally applied the signature on the peer review report.” In light of the foregoing, the order, insofar as appealed from, is affirmed.”

The appellate division grants summary judgment since the loss was not an insured event – UPDATED

St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 2010 NY Slip Op 00668 (2d Dept. 2010)

“In support of its cross motion, the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the accident in which the plaintiff’s assignor was injured was not an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199; see generally Alvarez v Prospect Hosp., 68 NY2d 320). In opposition to the defendant’s prima facie showing, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, the defense of lack of coverage is not precluded by the defendant’s failure to pay or deny the subject no-fault claim within the requisite 30-day period (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d at 199).”

Since i wondered what this case was about, I copied the relevant portions of the motion papers from the clerk’s office.  Here is what I found out:

This case involves the “my car was not there” defense.  There were numerous EUO’s that were done in this case and, without going into detail, the substance of the proof was sufficient to grant defendant summary judgment.

As to the form of the papers, the defendant annexed uncertified EUO transcripts and documentation without a business record foundation or other type of foundation.  Plaintiff in his opposition papers objected to the form of Defendant’s evidentiary presentation.  While I was unable to read the appellate briefs, I would imagine that Plaintiff’s admissibility argument was also presented in its Respondent’s brief.  Thus, it seems interesting that Defendant was able to get this decision reversed.

I will upload the relevant portions of the motion papers once my scanner behaves itself. The relevant portions of the motion papers in St Vincent v. Allstate are uploaded for your review.  Click on the previous hyperlink.

A second pre-answer motion to dismiss is alright if it is the first one to be decided on its merits

Chester Med. Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 52598(U)(App. Term 2d Dept. 2009)

“On November 21, 2006, plaintiff, a provider, commenced the instant action to recover assigned first-party no-fault benefits for a claim which was submitted to defendant on April 28, 2000. Defendant moved to dismiss the complaint on the ground that it was time-barred by the six-year statute of limitations. Plaintiff opposed defendant’s motion arguing that since this was defendant’s second pre-answer motion to dismiss, it was procedurally defective. The Civil Court granted defendant’s motion and dismissed the complaint. The instant appeal by plaintiff ensued.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) may be made at any time before service of the responsive pleading is required but no more than one such motion shall be permitted (see CPLR 3211 [e]). Where, as here, the original motion to dismiss the complaint pursuant to CPLR 3211 (a) is not decided on the merits, a subsequent motion to dismiss pursuant to CPLR 3211 (a) does not violate the single motion rule set forth in CPLR 3211 (e)”

By the way, I was Respondent on this case.

On November 21, 2006, plaintiff, a provider, commenced the instant action to recover assigned first-party no-fault benefits for a claim which was submitted to defendant on April 28, 2000. Defendant moved to dismiss the complaint on the ground that it was time-barred by the six-year statute of limitations. Plaintiff opposed defendant’s motion arguing that since this was defendant’s second pre-answer motion to dismiss, it was procedurally defective. The Civil Court granted defendant’s motion and dismissed the complaint. The instant appeal by plaintiff ensued.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) may be made at any time before service of the responsive pleading is required but no more than one such motion shall be permitted (see CPLR 3211 [e]). Where, as here, the original motion to dismiss the complaint pursuant to CPLR 3211 (a) is not decided on the merits, a subsequent motion to dismiss pursuant to CPLR 3211 (a) does not violate the single motion rule set forth in CPLR 3211 (e)

A new day for decisions…

I have an observation here that I want to share with those who read this – which I think consists of me, myself and I. The decisions in the realm of no-fault have been getting quite redundant. We used to always wait for the next big pronouncement from an appellate court, or even an observation from a lower court. Now, we just look to see when the next breaking or shattering of the status quo will occur.

With the above introduction in mind, now to the cases.

A.M. Med., P.C. v State Farm Mut. Ins. Co.
2008 NY Slip Op 28487 (App. Term 2d Dept. 2008)

Failure to properly caption – you better reject that paper within 2-days or you have waived the

Plaintiff argues that the absence of a caption setting forth the name of the court, the venue [*2]and the index number in the 90-day demand rendered it a nullity, as it was not in compliance with CPLR 2101 (c). However, the demand set forth the name of the case, including the name of the assignor, as well as the date of the loss. Consequently, in our opinion, the omissions were merely defects in form to which plaintiff’s counsel could have objected by returning the demand to defendant within two days of its receipt, specifying the nature of the defect (CPLR 2101 [f]). Plaintiff’s failure to do so waived any objection to the defect (see Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]). right to challenge that defect.

Psychmetrics Med., P.C. v Travelers Ins. Co.
2008 NYSlipOp 52466(U)(App. Term 2d Dept. 2008)

This is another notice to admit case. Nothing special, right? Well, this is the first citing of Art of Healing Medicine, P.C. v Traveler’s Home & Mar. Ins. Co., ___ AD3d ___, 2008 NY Slip Op 07846 [2d Dept 2008], the Appellate Division’s affirmance of the Dan Medical “business record foundation” cases in order to establish a prima facie case…. Exciting, right?


My last words of the day…

I love the commentary from the Appellate Term on CPLR 2101. Realistically, how many law practices can realistically reject a non-captioned filing within two days of receipt? A better question – how many law practices can reject a “hidden” affidavit that is not captioned within a properly captioned motion within two days of its receipt? I know I cannot – and my practice pales in comparison to that of the larger firms out there – e.g., Baker, Sanders (among others)…

And then there is Art of Healing – vindication to those who have pushed through Dan Medical and its progeny…