Default judgment upheld

State Farm Mut. Auto. Ins. Co. v Anikeyeva, 2015 NY Slip Op 06329 (2d Dept. 2015)

“In a so-ordered stipulation dated November 20, 2012 (hereinafter the conditional order), the Supreme Court directed that the defendants’ answer was “conditionally stricken unless” the defendants complied with the plaintiff’s discovery demands on or before January 7, 2013. It is undisputed that the defendants failed to comply with the conditional order. The Supreme Court granted the plaintiff’s motion to strike the defendants’ answer for failure to comply with the conditional order and for leave to enter a default judgment pursuant to CPLR 3215. The court then entered judgment upon the order declaring that the plaintiff was not obligated to pay certain insurance claims submitted to it by the defendants.”

“To avoid the adverse impact resulting from the conditional order becoming absolute, the defendants were required to demonstrate a reasonable excuse for their default in complying with the terms of the conditional order and a meritorious defense to the complaint (see Estate of Alston v Ramseur, 124 AD3d 713; Pugliese v Mondello, 67 AD3d at 881; Grinage v City of New York,45 AD3d 729, 730; Lee v Arellano, 18 AD3d at 621; Johnson v Heavy Realty Corp., 191 AD2d 538; see also Karalis v New Dimensions [*2]HR, Inc., 105 AD3d 707, 708). The defendants did neither.”

I hope Anikeyeva has filed for bankruptcy.

Mr. Five Boro – the distant cousin of Mr. All Boro – has reappeared

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 51013(U)(App. Term 2d Dept. 2012)

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. The Civil Court found that defendant had established that it had timely denied the subject claims on the ground that the services at issue were not medically necessary, and that plaintiff had failed to rebut defendant’s evidence. A judgment was subsequently entered, from which this appeal is deemed to have been taken

Contrary to plaintiff’s argument on appeal, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant’s peer reviewer”

You always knows that when Mr. Five Boro appears, something bad will happen to the plaintiff’s bar.

Staged accident and non-payments of premiums

21st Century Advantage Ins. Co. v Cabral

Look, 21st Century did their homework.  Someone admitted to defrauding the insurance companies.  Yet, Mr. All Boro, a distant relative of of Mr. Five Boro felt the need to put in gratuitous opposition to the preliminary injunction motion.  As such, more paper and judicial resources were were wasted on a case that has no value.  More can be said, but I will leave it that.

On a more serious note, it seems that a lot of companies are binding contracts over the internet without performing any due diligence.   Perhaps the ability to cancel policies based upon non-payment needs to be amended to allow retroactive rescission.    This will at least mandate that some payment is made before the insurance companies have to investigate these types of incidents.

Mr. Five Boro takes a dive on this one

Congratulations to my colleague James F. Sullivan, Esq., on this DJ victory in American Transit Ins. Co. v. Toussaint, Index #:  105931/11 (Sup. Ct. NY Co., Rankower, J.).  This is a Unitrin based DJ in Supreme, New York.  I will digress for a moment.

In the last 18 months, we have recorded some of our favorite oppositions.  I will share them with you by our favorite Defendants:

Mr. Five Boro: “you did not prove you mailed it”; “you did not prove he did not attend”; “Unitrin should not be followed”; and the Federal Arbitration Act precludes you from bringing this action.

Mr. Active Care Medical Supply Corporation: Same as above and: “There is no justiciable controversy (even though this fellow admits that he submitted claims in his answer)”; “Encare superseded Unitrin (stretching?)”; and “The life and times of some unknown attorney who presents the same affirmation in each case, with a new caption in each opposition, must result in the denial of your motion.” (a red herring which the former presiding Justice of the Appellate Term, First Department, Hon. Lucindo Suarez was not impressed with in American Transit v. Gibson, et. al. (Index #: 307797/11)(Sup. Ct. Bronx Co. 2012 [Suarez, J.])

Mr. City Care Acupuncture – and this one is great: cross-claims against the Assignor, counterclaims against us and this gentleman puts a notice in accordance with the FDCPA in his papers, I guess to protect himself from a federal lawsuit under 15 USC 1692-1692p.

Back to the post.  What makes this case interesting is that the Supreme Court applied NYP v. Countriwide, for the proposition that the failure to attend an IME/EUO voids the assignment and the policy:

“The Policy and NY Insurance Regulation § 68 provide that Plaintiff may request that an eligible injured person submit to an examination under oath when and as often as, the company may reasonably require, as a condition precedent to the disbursement of any benefits under the terms of the Policy, where there is a failure to comply with the terms of the policy, any assignment of benefits becomes worthless. (See, New York and Presbyterian Hosp. v. Country-Wide Ins. Co., 2011 WL 4834479 [2011]). Inasmuch as Toussaint failed to comply with the terms and conditions of the policy by failing to appeal for an examination under oath, Toussaint did not have the right to assign benefits to any medical providers, including Five Boro and Village, because the right to benefits was not triggered in the first place.”

For the life of me, I never understood why somebody would get involved in Supreme Court litigation and not attempt to present tangible proof to oppose the motion.  A little footwork goes a long way.

Acupuncture fee schedule defense upheld

Raz Acupuncture, P.C. v New S. Ins. Co., 2012 NY Slip Op 50865(U)

“The affidavits submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) plaintiff’s claims on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule.”

Another great appeal.  Mr. Five Boro would be proud.

Mr. Five Boro at it again

Five Boro Psychological Servs., P.C. v MVAIC, 2012 NY Slip Op 50677(U)(App. Term 2d. Dept. 2012)

The Mr. Five Boro award now goes to……Mr. Five Boro.

“The affidavit submitted by plaintiff’s billing and collection supervisor in support of plaintiff’s motion for summary judgment was insufficient to establish plaintiff’s prima facie case (see CPLR 4518 [a]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Accordingly, plaintiff’s motion for summary judgment was properly denied.”

Do you think if Mr. Five Boro had to pay $2,300 (the average cost of a record on appeal if given to a printer to do) instead of proceeding in the original record, he would have perfected such a meritorious appeal?

Res Judicata through a DJ

A winner of the much vaunted Mr. Five Boro award.  An award granted only to the most deserving in our area of jurisprudence.    Ms. Ava Acupuncture has done the Mr. Five Boro award proud.  Cheers.

Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50233(U)(App. Term 2d Dept. 2012)

“By order dated October 26, 2007, the Supreme Court granted defendant’s motion for entry of a declaratory judgment, on default, declaring that defendant had “no present or future obligation to furnish benefits under the Mandatory Personal Injury Protection coverage” to the parties named as defendants in the declaratory judgment action.”

“Based upon the October 26, 2007 order of the Supreme Court, the instant action is barred under the doctrine of res judicata (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]; Pomona Med. Diagnostics, P.C. v Metropolitan Cas. Ins. Co., 29 Misc 3d 138[A], 2010 NY Slip Op 52039[U] [App Term, 1st Dept 2010]). To hold otherwise could result in a judgment in the instant action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff’s contention, the Supreme Court’s order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated”

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.”