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.


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,

What happened to those EUO letters? What happened to the IME letters? Where are those denials?

Parisien v Maya Assur. Co., 2018 NY Slip Op 50771(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling examinations under oath (EUOs) had been properly addressed and mailed”

Parisien v Maya Assur. Co., 2018 NY Slip Op 50766(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed ”

Big Apple Ortho Prods., Inc. v Allstate Ins. Co., 2018 NY Slip Op 50775(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed ”

Mind & Body Acupuncture, P.C. v Allstate Ins. Co., 2018 NY Slip Op 50779(U)(App. Term 2d Dept. 2018)

“Plaintiff correctly argues that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed””

Remedial Med. Care, P.C. v Park Ins. Co., 2018 NY Slip Op 50769(U)(App. Term 2d Dept. 2018)

“With respect to the remaining bills, plaintiff correctly argues that defendant failed to establish that the initial and follow-up letters scheduling independent medical examinations (IMEs) had been timely mailed”

IME no-show unsuccessful

Pierre J. Renelique, M.D., P.C. v Park Ins. Co., 2018 NY Slip Op 50780(U)(App. Term 2d Dept. 2018)

“Defendant’s moving papers stated that the IME scheduling letters were sent to plaintiff’s assignor at “2497 Grant Avenue, Basement, Bronx, NY 10468,” but the NF-3 form submitted by plaintiff indicated that the assignor’s address was “2307 Morris Ave, #2C, Bronx NY 10453.” A presumption of receipt arises only where there is proof of a proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d [*2]Dept, 2d, 11th & 13th Jud Dists 2013]). To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff’s assignor was represented by that attorney. Consequently, defendant’s moving papers failed to demonstrate that the IMEs had been properly scheduled”

Clearly, the carrier was relying on the mailing of the IME letters to the attorney to make up for incorrect mailing of the letters to the Assignor.  The carrier failed (it appears) to place the LOR in the moving papers.  But even assuming this was done, was the attorney for Assignor lulled into believing that the letters were mailed to the correct address?  See Global v.  New Century Acupuncture, P.C.?  The only way not to be lulled is foe the letter to the attorney to include the address of the Assignor on the “cc:” part of the letter.

The Unitrin/ Westchester split

Valdan Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 50739(U)(App. Term 2d Dept. 2018)

Oh its’s real. “Three of the claims at issue in this case, seeking the sums of $1,062.11, $1,420.16 and $1,420.16, respectively, were denied on grounds other than plaintiff’s assignor’s failure to appear for IMEs. Consequently, as plaintiff argues, defendant did not preserve its IME no-show defense as to those claims and, thus, it is not entitled to summary judgment dismissing those claims on that ground ”

Shout out to former no-fault attorney Irena Golodkeyer on her brief.  Rumor tells me that she has found greener pastures in the world.