Procedurally improper
Rehabxpress, PT, P.C. v Auto One Ins. Co., 2017 NY Slip Op 27246 (App. Term 2d Dept. 2017)
Mr. Rybak likes to chide me about my not publishing my losses on this blog. I always like to tell him it is my blog and I can publish what I want. In all seriousness, sometimes I am guilty of thinking way outside the box and perhaps a few solar systems away. Give this one a “P” for Pluto the planet that is not a star.
Here, I figured I could take a cost and disbursement judgment, offset it against a Civil Court judgment and be free and clear. It seemed so logical to me. Apparently, the gang on the 15th floor at 141 Livingston disagreed with me or, even worse, left open the issue for another day.
First, they stated the partial SOJ was never filed. It was e-filed but the “filed” one was not placed in the papers. CPLR 2001 error. But the real crux of the case was as follows:
“Notwithstanding the foregoing, it was apparently the insurer’s objective to have a portion of the judgment in the Supreme Court declaratory judgment action fully offset the judgment obtained against it in the Civil Court action. While a court may exercise its “inherent authority to set one judgment off against another” (see Joseph Kali Corp. v A. Goldner, Inc., 49 AD3d 397, 398 [2008]; see also Scianna v Scianna, 205 AD2d 750 [1994]), the granting of such relief rests in the discretion of the court (see Beecher v Vogt Mfg. Co., 227 NY 468, 473 [1920]; Kretsch v Denofrio, 137 App Div 617, 619 [1910]). Assuming, without deciding, that the Civil Court possessed the jurisdiction to entertain such an application (cf. Stilwell v Carpenter, 62 NY 639 [1875]), the Civil Court’s determination not to set off the judgments was not an improvident exercise of discretion.”
(Note: my template for this motion says CPLR 5020(c) – it should say 5021(a)(2))
CCA 1401 – again
W.H.O. Acupuncture, P.C. v Geico Indem. Co., 2011 NY Slip Op 51530(U)(App. Term 2d Dept. 2011).
Article 78?
“We incidentally note that the judgment in this case was improperly prepared and entered by the clerk on his own initiative and that no notice of the entry of the judgment was provided to the parties. Pursuant to CCA 1401, a judgment shall be prepared by a party’s attorney and should be prepared by the clerk only upon the request of an unrepresented party, except in the case of a summary proceeding to recover possession of real property.”
Satisfaction piece
So, who was the braniac that appealed this one? I am almost tempted to check e-courts, but I will resist the temptation.
Baldwin Acupuncture, P.C. v Allstate Ins. Co., 2011 NY Slip Op 51536(U)(App. Term 2d Dept. 2011)
“Plaintiff appeals, contending that the stipulation of settlement should have been vacated and, in any event, that there was no basis for the Civil Court to have vacated the default judgment, as this relief was never requested by defendant.
Stipulations of settlement are favored by the courts and not lightly cast aside (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Matter of Galasso, 35 NY2d 319, 321 [1974]; Racanelli Constr. Co., Inc. v Tadco Constr. Corp., 50 AD3d 875 [2008]). Pursuant to CPLR 2104, when a stipulation is reduced to a writing and signed by a party or its attorney, it is binding upon that party. Furthermore, strict enforcement of a stipulation of settlement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and the integrity of the litigation process (see Hallock v State of New York, 64 NY2d at 230; Racanelli Constr. Co., Inc. v Tadco Constr. Corp., 50 AD3d at 876). Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation (see Hallock v State of New York, 64 NY2d at 230; Matter of Frutiger, 29 NY2d 143, 149-150 [1971]; Racanelli Constr. Co., Inc. v Tadco Constr. Corp., 50 AD3d at 876; Nigro v Nigro, 44 AD3d 831 [2007]; Davidson v Metropolitan Tr. Auth., 44 AD3d 819 [2007]).
Contrary to plaintiff’s contentions, plaintiff did not establish that the stipulation of settlement had been entered into through mutual mistake, nor has there been a sufficient showing that there existed a unilateral mistake on the part of plaintiff of a nature that would warrant the vacatur of the stipulation (see Matter of Marquez, 299 AD2d 551 [2002]). Moreover, we do not find that there has been a sufficient showing to demonstrate that defendant fraudulently induced plaintiff to enter into the stipulation of settlement (see Matter of Kaplan, 141 AD2d 545 [1988]). We, however, agree with plaintiff that neither the stipulation nor defendant’s motion called for the vacatur of the default judgment. Accordingly, the order is modified by striking the provision thereof vacating the default judgment and by providing that defendant’s motion for an order directing entry of a satisfaction of the judgment pursuant to CPLR 5021 is granted.”
WHO?
W.H.O. Acupuncture, P.C. v Geico Gen. Ins. Co., 2011 NY Slip Op 51408(U)(App. Term 2d Dept. 2011)
Three statements of law.
One you knew – unless you are (1) arguing that the acupuncture fee schedule is unconstitutional, and (2) failing to inform Schneiderman’s office in violation of the Executive Law that you are challenging the constitutionality of a statute or regulation. Seriously – and you know who you are – stop already.
The second one is interesting because an appeal of an order finding liability constitutes an appealable paper notwithstanding a subsequent order that modifies the awarded damages.
Last – a judgment should not be prepared by the clerk and should be served on the adversary. I know there is case law out there refuting the latter point – I need to find it. As to the former point – someone should call chief clerk Baer since the Civil Courts, as a matter of course, have been preparing judgments in all cases for about 4-5 years already.
“We note that the April 28, 2010 order modified the December 18, 2009 order only to the extent of changing the sum awarded. It did not affect the Civil Court’s findings of liability as a matter of law, which are the subject of defendant’s appeal.”
“We incidentally note that the judgment in this case was improperly prepared and entered by the clerk on his own initiative and that no notice of the entry of the judgment was provided to the parties. Pursuant to CCA 1401, a judgment shall be prepared by a party’s attorney and should be prepared by the clerk only upon the request of an unrepresented party, except in the case of a summary proceeding to recover possession of real property.”
“We find that defendant’s cross motion for summary judgment dismissing the complaint should have been granted, as it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for services rendered by a licensed acupuncturist”
Fee schedule defense requires submission of admissible evidence
St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 2010 NY Slip Op 50488(U)(App. Term 2d Dept. 2010)
1. Fee Schedule
“While defendant argues that the Civil Court improperly awarded plaintiff summary judgment as to its seventh cause of action since defendant timely denied that bill on the ground that the fees charged were excessive and not in accordance with the Workers’ Compensation fee schedule, defendant did not annex any proof to establish said defense. Consequently, defendant failed to establish the existence of an issue of fact with respect to this cause of action.”
This is probably regarding a global denial based upon range of motion testing being considered part of the initial visit. I do not know this for sure, but this seems to be a common theme between these parties and the attorneys representing them. Today, the Appellate Term properly held that an issue of fact was not raised. On some days, they hold a triable issue of fact is raised when similar proof is presented. On other days, they hold similar to that of this case.
2. Appeals from interlocutory judgments
“Defendant also argues that the Civil Court improperly denied its cross motion for summary judgment as to plaintiff’s tenth cause of action because plaintiff failed to rebut defendant’s prima facie showing of lack of medical necessity as to this cause of action. However, since defendant did not appeal from the underlying order and the appeal from the judgment does not bring up for review so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s tenth cause of action, said part of the order is not before us on appeal.”
It took me a bit to figure this out. A final judgment always brings up for review the underlying non-appealed interlocutory orders. In this case, an interlocutory judgment was issued, since the judgment did not encompass the entire action. Rather, it encompassed everything except the medical necessity cause of action. Therefore, absent an appeal of the order denying summary judgment, Defendant can only appeal from the final judgment. The final judgment would occur following the trial. At that point, an appeal of the final judgment would bring up for review the order denying summary judgment.
Do you understand?