IME excuse without personal knowledge

Medcare Supply, Inc. v Global Liberty Ins., 2020 NY Slip Op 50231(U) (1st Dept. 2020)

” Defendant’s moving papers demonstrated, prima facie, that defendant had timely mailed both the IME scheduling letters and the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In opposition, plaintiff proffered an affirmation by its assignor’s counsel, who did not assert that she possessed personal knowledge of the facts. Consequently, plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]). “

In this case, the attorney for the Assignor signed an affirmation explaining why her client failed to attend the IMEs. The court found this insufficient. Perhaps, Plaintiff would have had better luck in arbitration where the rules of evidence do not apply?

It’s the 30-day rule

Success Rehab, PT, P.C. v Hereford Ins. Co., 2019 NY Slip Op 52031(U) (App. Term 2d Dept. 2019)

“Contrary to defendant’s contention, defendant did not establish its entitlement to summary judgment. Defendant acknowledged that it had received 9 of the 12 claims at issue between May 13, 2015 and June 19, 2015 and that plaintiff’s assignor’s first IME was scheduled for August 3, 2015. As that IME had not been scheduled to be held within 30 calendar days after defendant had received those claims, defendant did not demonstrate its entitlement to summary judgment dismissing so much of the complaint as sought to recover upon those claims based upon the assignor’s failure to appear for IMEs (see 11 NYCRR 65-3.5 [d] “

IME no-shows sustained

Valdan Acupuncture, P.C. v Global Liberty Ins. Co. of NY, 2019 NY Slip Op 51705(U)(App. Term 2d Dept. 2019)

” Defendant established that initial and follow-up letters scheduling IMEs had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claim seeking to recover the sum of $1,224.22 had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to the branch of defendant’s cross motion seeking summary judgment dismissing, on the ground that plaintiff’s assignor had failed to appear for duly scheduled IME “

Tyorkin v Global Liberty Ins., 2019 NY Slip Op 51689(U)(App. Term 2d Dept. 2019)

“[d]efendant submitted an affidavit by a supervisor employed by Omnimed Evaluation Services, which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to [*2]coverage (id. at 722). As defendant’s cross motion further established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims on that ground…”

Compare to: Satya Drug Corp. v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51505(U)(App. Term 1st Dept. 2019)

It should be noted that the Appellate Division, First Department as I have seen does not follow the “Metro 8” contemporaneous rule. Thus, while I am biased here, the Second Department got it right.

Lidas Med. Supply, Inc. v Global Liberty Ins., 2019 NY Slip Op 51688(U)(App. Term 2d Dept. 2019)

” The record demonstrates conclusively that while the address to which defendant mailed the letters did not include an apartment number, the address matched the one provided by plaintiff’s assignor on the assignor’s sworn application for no-fault benefits (NF-2) and on the assignor’s sworn notice of intention to make claim form which was submitted to defendant. Consequently, defendant established that the address to which the IME scheduling letters were mailed was proper”

We have seen recent cases where the Appellate Term, Second Department has followed the Appellate Division First Department rule requiring the provider to show the address is wrong in the first instance. The safer route is always to provide corroboration of the address and the attorney rep. letter. The IME letters should always have the name and address of the EIP and the attorney on all letters.

Article 75 lay-up

Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc., 2019 NY Slip Op 06445 (1st Dept. 2019)

I know AAA will not like this decision. But as we told the master arbitrator in our brief, this is the law. The master refused to listen.

The above thought actually traces back to a recent snarky post on the No-fault group on Facebook One poster I think hailed a AAA decision about the inability to delay for recorded statements as gospel. Another poster found a Civil Court case saying the same thing. I then found an App Term case from 12 years prior that was contrary. What is my point? Do not trust AAA (or the App. Term) on the law if you think you are right.

Truth be told, the App. Div First Department will grant you leave if you can show them that an App Term decision is inconsistent with precedent, common sense or of significant import. While I do not agree with every decision from that Court, you know that your applications are getting attention at that tribunal. Again, the First Department only hears cases from two counties and has significant resources to give cases the attention they deserve.

The Second Department, however, is a lot more sparring with their grants of leave. They will only grant leave if the issue is hot button and involves millions of dollars, if not addressed. For proof, ask yourself why that court heard a pre-LMK interest case and will hear the Alleviation case. That said, leave will almost never be granted in mundane cases.

In fact, if you were to track First and Second Department CPL 440 leave applications, you would see the same trend. I do not blame the Second Department for its stinginess in granting leave application, despite being the victim of perfunctory leave denials. That Court is the busiest appellate court in the country.

Time for a Fifth Appellate Division anyone?

As to this case:

“Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 31, 2018, which denied the petition to vacate a master arbitrator’s award, unanimously reversed, on the law, without costs, and the petition granted.

The master arbitrator’s award was arbitrary because it irrationally ignored the controlling law that the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical exams (see Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]; American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]).”

Did the address match?

Brand Med. Supply, Inc. v Repwest Ins. Co., 2019 NY Slip Op 51183(U)(App. Term 2d Dept. 2019)

“However, the record demonstrates conclusively that the address to which defendant mailed the letters matched the address provided by plaintiff on its bill and by plaintiff’s assignor on the assignor’s application for no-fault benefits (NF-2). Thus, plaintiff has not demonstrated that defendant did not give the assignor proper notice of the IME”

I would sense that a mailing to the address on the bill, AOB or NF-2 would be sufficient.

Triable issue of fact as to non-appearance?

Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51038(U)(App. Term 2d Dept. 2019)

“In opposition to defendant’s motion for summary judgment, plaintiff’s owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant’s investigator, but that plaintiff was not contacted by defendant in response to the messages. In response, defendant did not provide an affidavit from anyone with personal knowledge, but rather relied upon an affirmation from its counsel, asserting that plaintiff’s owner’s affidavit was too vague and that plaintiff was attempting to raise a feigned issue of fact. On this record, we find that defendant failed to demonstrate, as a matter of law, its entitlement to summary judgment dismissing the complaint “

So this case should now devolve into a deposition of the provider to find out what number he called and when called. Of course, we want the phone records to show that indeed (s)he did call. And if the evidence is not there? Wire fraud? Perjury? Civil Rico? The imagination knows no boundaries.

Alas Lifespan Wellness, Pt, P.C. v Citywide Auto Leasing, Inc., 2019 NY Slip Op 51040(U)(App. Term 2d Dept. 2019)

“Plaintiff failed to raise an issue of fact in opposition to defendant’s motion, as a phone call from the assignor on the day of the scheduled IME asking to adjourn the IME, without more, is insufficient to show that an issue of fact exists as to whether the IME was mutually rescheduled”

This is a thorny area of law. What is a reasonable cancellation? We all like bright line rules. These make Article 75’s possible, Civil appeals more certain and allow a better degree of predictability. Like many, I do not like when I cannot determine the right answer from an other common set of facts.

Causation

Streety v Toure, 2019 NY Slip Op 04487 (1st Dept. 2019)

(1) “The report of defendants’ expert emergency medicine physician is sufficient to establish their prima facie burden on the issue of causation insofar as the physician opined that the record of plaintiff’s examination in the emergency room showed findings inconsistent with his claimed injuries.”

(2) ” In opposition, plaintiff raised an issue of fact as to serious injury of a permanent nature through the submission of his pertinent medical records documenting complaints of pain and treatment to the affected body parts within days of the accident (see Perl v Meher, 18 NY3d 208, 217-218 [2011]) as well as the affirmed report of his treating orthopedic surgeon, who reviewed plaintiff’s medical history, his own treatment of plaintiff, and plaintiff’s MRIs, and who recounted his direct observations of plaintiff’s injuries during surgery and opined that they were causally related to the accident”

So the surgeon wrote an affidavit that accounted for the history, the operative report and opined visually a causally related injury consistent with an MVA. That takes the case to trial.

IME doctor potentially on the hook for malpractice

Goldson v Mann, 2019 NY Slip Op 04329 (1st Dept. 2019)

” Defendant failed to meet his prima facie burden of demonstrating that he did not depart from good and accepted medical practice in examining plaintiff during an independent medical examination (IME), or that any such departure was not a proximate cause of plaintiff’s injury to her left shoulder (see Scalisi v Oberlander, 96 AD3d 106, 120 [1st Dept 2012]). Defendant’s expert affirmation, which relied on defendant’s testimony regarding his custom and practice of examining patients during his IMEs, was insufficient. Defendant’s testimony did not establish a deliberate and repetitive practice sufficient to show evidence of his behavior during plaintiff’s examination, as he testified that his examination varied depending on the examinee”

New evidence in reply?

Valdan Acupuncture, P.C. v 21st Century Advantage Ins. Co., 2019 NY Slip Op 50822(U)(App. Term 2d Dept. 2019)

Defendant also submitted affirmations and affidavits from medical providers who were to perform the IMEs, which sufficiently established that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel [*2]Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims representative demonstrated that the denial of claim forms, which denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).

[In opposition Plaintiff presented evidence showing that the address was wrong]

“In reply, defendant submitted a copy of the NF-2 which was sworn to on July 29, 2011, and the police report from the July 17, 2011 accident. Both the police report and the sworn NF-2 stated that the assignor’s address was on Van Siclen Avenue. The Civil Court denied defendant’s motion for summary judgment dismissing the complaint, holding that plaintiff’s claims forms which were annexed to defendant’s moving papers raised an issue of fact as to the mailing of the IME scheduling letters and that defendant could not cure the defect in reply.

While a party moving for summary judgment generally cannot meet its prima facie burden by submitting evidence for the first time in reply, there is an exception to this general rule where, as here, the evidence is submitted in response to allegations raised for the first time in the opposition papers (see Central Mtge. Co. v Jahnsen, 150 AD3d 661 [2017]; Conte v Frelen Assoc., LLC, 51 AD3d 620 [2008]). As a result, the Civil Court erred when it held that the NF-2 and police report annexed to defendant’s reply papers could not be considered in support of defendant’s motion for summary judgment dismissing the complaint. Those documents established that, at the time the IME letters had been mailed to plaintiff’s assignor, the letters had been mailed to the assignor’s address as set forth in the sworn NF-2 and the police report, which was the only address known to defendant at that time.”

The new evidence in reply rule has always been amorphous. What I found strange is that I always through the Appellate Term, Second Department required an NF-2 or LOR in the moving papers to make out a no-show case. Thus, providing this evidence in Reply would be making a prima facie case in Reply. The First Department has clearly held that the medical provider or EIP has the burden to prove the wrong evidence in opposition.

So, this case confuses me in various ways.

Poor opposition papers cannot be remedied on appeal

Preferred Ortho Prods., Inc. v 21st Century Ins. Co., 2019 NY Slip Op 50224(U)(App. Term 2d Dept. 2019)

” Plaintiff’s sole appellate contention with respect to defendant’s motion, “that the address used on the IME scheduling letters improperly included an apartment number that does not appear on plaintiff’s claim forms, will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015])” (Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51523[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). “

It is nice to have one of the former administrative judges of Civil Court, Queens County when no-fault causes ruled that Court’s docket sit on the Appellate Term, Second Department. Having argued Market Street v. Global Liberty with that judge on the panel, you can tell that the Court finally has someone on it who understands the reality of this practice. It is no irony that certain decisions are leaning a certain away this year,