Defective notarization

Clarke v Scottsdale Ins. Co., 2014 NY Slip Op 51586(U)(App. Term 2d Dept. 2014)

(1) 2309 defect does not matter anymore.  “While plaintiff timely objected to the form of defendant’s affidavit, in that it did not comply with the requirements of CPLR 2309 (c), the absence of a certificate of conformity is not a fatal defect”

(2)”Nevertheless, we find that the affidavit of defendant’s claims analyst was not in proper admissible form for a different reason, to wit, that the notary public never stated therein that the claims analyst had personally appeared before her and was personally known to her or had satisfactorily established her identity (see Galetta v Galetta, 21 NY3d 186 [2013]; see also Fryer v Rockefeller, 63 NY 268 [1875]; Gross v Rowley, 147 App Div 529 [1911]; cf. Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). “

A questionable release

Ford v Phillips, 2014 NY Slip Op 07037 (3d Dept. 2014)

This one struck me as odd when I read it 2 weeks ago.

(1) “Defendants met their initial burden of establishing that they had been released from [*2]plaintiff’s claims by submitting the signed release. Contrary to plaintiff’s contention, no affirmation from a party with personal knowledge was required to authenticate the release; plaintiff admits that he signed the document, and its facially valid terms establish that he released all personal injury claims against defendants arising out of the June 2012 accident. Accordingly, the burden shifted to plaintiff to establish the existence of issues of fact as to whether the release bars this action”

(2) “Plaintiff submitted an affidavit asserting that a claims representative for Travelers contacted him shortly after the accident to arrange a meeting at plaintiff’s home. During this meeting, the representative allegedly induced plaintiff to sign the release by assuring him that he had suffered only “soft tissue injuries” that would heal over time and that Travelers would “take care of [plaintiff]” if his injuries turned out to be “something serious.” Plaintiff asserts that the representative stated that Travelers was an “up-and-up company” that “doesn’t play games,” that New York law required the company to take care of “any permanent injury,” and that Travelers had recently paid $20,000 to another injured party who had undergone surgery after signing a release. Finally, plaintiff claims that the representative told him that the $750 payment represented interim reimbursement for time and fuel expenses related to medical appointments, rather than a final settlement. Plaintiff asserts that he read the release but did not understand its significance because he had never been involved in a personal injury automobile accident before, and that he relied upon the representative’s alleged statements in executing the release. He further asserts that he suffered herniated disks as a result of the accident, and is now advised that surgical correction is required.”

(3) “In reply, defendants submitted an affidavit from the claims representative, denying that he represented to plaintiff that the $750 payment represented anything other than a full settlement of his claims, or that the settlement could be altered after the release was signed. The representative described two telephone conversations and one face-to-face meeting with plaintiff in which the only injuries that plaintiff reported were “soreness in his arms” and “muscle pain in his forearms,” for which he was being treated by his primary care physician. The representative further averred that when plaintiff met with him to sign the release, he stated “that his arms were feeling better” and that he had returned to work. The affidavit includes no claim that plaintiff mentioned that he had suffered injury to his neck or back, nor does it state that the parties intended the release to cover other injuries.”

(4) “In the context of mistakes pertaining to personal injuries, a sharp distinction is drawn between unknown injuries and mistakes as to the consequences of known injuries; a release may be invalidated if the parties mistakenly believed that an injury did not exist when the release was executed, but will not be set aside for a mistake pertaining to the “future course[] or sequelae of a known injury” (Mangini v McClurg, 24 NY2d at 564; see Hayes v Lipinski, 239 AD2d 835, 835 [1997]; Carola v NKO Contr. Corp., 205 AD2d 931, 932 [1994]). Treating plaintiff’s claims as true and allowing him the benefit of every favorable inference, this record does not establish as a matter of law that either party knew of plaintiff’s cervical injury or alleged herniated disks when he signed the release. It is quite unclear whether there was a mutual mistake as to the true nature of plaintiff’s injuries at the time of the execution of the release, and what injuries the release was to cover; resolution of this issue as a matter of law and dismissal of the complaint was thus premature”

Motion denied.

Submit order?

47 Thames Realty, LLC v Robinson, 2014 NY Slip Op 06051 (2d Dept. 2014)

“22 NYCRR 202.48, entitled “[s]ubmission of orders, judgments and decrees for signature,” states in pertinent part:

“(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.

“(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown.”

Here, the so-called 60-day rule set forth in 22 NYCRR 202.48 is not applicable because the Supreme Court’s direction that the defendants submit a proposed order with respect to an award of an attorney’s fee did not specify that the proposed order be settled or submitted on notice (see Farkas v Farkas, 11 NY3d 300, 309; Shamshovich v Shvartsman, 110 AD3d 975, 976-977; Matter of Village of Dobbs Ferry v Stanley Ave. Props., Inc., 95 AD3d 1027, 1029). Accordingly, the plaintiff’s contention that the defendants abandoned their claim for an award of an attorney’s fee by failing to comply with the 60-day rule is without merit.”

Just note the difference between the three directives that do not arise from a “decision/order”: (a) Submit order [not within gambit of 60-day rule]; (b) Settle order [within gambit of 60-day rule]; (c) submit order on notice [within gambit of 60-day rule].

Supplemental affirmation on a DJ case acceptable and res judicata mandates dismissal of complaint

Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 2014 NY Slip Op 51324(U)(App. Term 2d Dept. 2014)

This was proudly mine and another example of why it pays to put up a good fight as well as to be proceduraly savvy.

“Great Health Care Chiropractic, P.C. (Great Health) commenced this action on February 14, 2012 to recover assigned first-party no-fault benefits for services provided to its assignor as a result of injuries sustained in a motor vehicle accident on December 10, 2010. After issue had been joined, plaintiff moved for summary judgment, and defendant opposed the motion on the ground that plaintiff had failed to establish its prima facie case. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Great Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath (EUOs) and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Great Health as assignee of Kareem Lindsay arising out of the December 10, 2010 accident. Great Health asserted in its answer in Supreme Court that American Transit did not demonstrate good cause for requesting an EUO. The Supreme Court initially denied a motion by American Transit for, among other things, summary judgment but, upon reargument, granted the motion, finding that American Transit had demonstrated that it had timely mailed EUO scheduling letters to Great Health’s assignor; that the assignor had failed to appear for scheduled EUOs; and that Great Health had failed to raise a triable issue of fact in opposition to the motion. The Supreme Court awarded American Transit a declaratory judgment, dated January 25, 2013.

After being awarded the declaratory judgment, American Transit submitted, in this action, a supplemental affirmation by its counsel, in opposition to plaintiff’s motion for summary judgment, in which he argued that plaintiff’s action is barred by res judicata. By order entered February 28, 2013, the Civil Court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice. This appeal by plaintiff ensued.

 “(1) Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment.”

(2) “Moreover, the Civil Court properly determined that the action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]).”

(3) Defendant’s failure to serve the Supreme Court’s order upon plaintiff with notice of entry is not fatal, in view of the binding and conclusive effect of the order (see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co., ___ Misc 3d ___, 2014 NY Slip Op 24161 [App Term, 2d, 11th & 13th Jud Dists 2014]).

(4) While plaintiff argues that the Civil Court improvidently exercised its discretion in considering defendant’s untimely supplemental affirmation in opposition to plaintiff’s summary judgment motion, we reject this contention in view of the justification shown for the delay and plaintiff’s failure to demonstrate any prejudice arising therefrom (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874 [2011]; cfMosheyeva v Distefano, 288 AD2d 448 [2001]; Risucci v Zeal Mgt. Corp., 258 AD2d 512 [1999]). In view of the foregoing, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.”

Every time Rybak appeals, he just digs that hole a little deeper and a little wider.

 

Back when DJ’s roamed the earth

Ultimate Health Prods., Inc. v American Tr. Ins. Co., 2014 NY Slip Op 51321(U)(App. Term 2d Dept. 2014)

Good job to my colleague and friend James Sullivan on this one.

“Ultimate Health Products, Inc. (Ultimate Health) commenced this action in the Civil Court, Queens County, to recover assigned first-party no-fault benefits for supplies provided to its assignor as a result of injuries sustained in a motor vehicle accident. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Ultimate Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Ultimate Health as assignee of Carlos Martinez arising from the car accident in question. In December of 2011, plaintiff moved in the Civil Court for summary judgment. On May 15, 2012, the Supreme Court awarded American Transit a declaratory judgment on default. American Transit subsequently cross-moved in the Civil Court, pursuant to CPLR 3211 (a) (5), to dismiss plaintiff’s action, contending that this action is barred by virtue of the declaratory judgment. Plaintiff opposed defendant’s cross motion and now appeals from an order of the Civil Court, entered January 18, 2013, which implicitly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint.

The Supreme Court determined that Ultimate Health’s assignor was not an eligible injured person entitled to no-fault benefits under the applicable policy, and that American Transit was not obligated to pay claims submitted by Ultimate Health as assignee of Carlos Martinez in any current or future proceedings arising under that policy from the car accident in question. In light of the declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. [*2]Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). Plaintiff’s remaining arguments lack merit or were not preserved for appeal.”

This is from back when the good guys had the stage and providers had to earn their money.

Death knell to 2309(c)

Midfirst Bank v Agho, 2014 NY Slip Op 05778 (2d Dept. 2014)

“Our Court is observing a significant upswing in the number of appeals where the parties are contesting the admissibility of affidavits executed outside of the state, without CPLR 2309(c) certificates of conformity.”

(Supreme Court denied motion for leave to enter default due to failure to comply with CPLR 2309[c])

Held to comply with 2309(c)

“Mills’s affidavit was executed in the County of Oklahoma, State of Oklahoma, on September 20, 2012. The jurat reads:

State of Oklahoma

County of Oklahoma

Subscribed and sworn to (or affirmed) before me this 20th [sic] of September, 2012, by Josh Mills, [who] provided to me the basis of satisfactory evidence to be the person(s) who appeared before me.

Signature Mark R. Pitts (Notary Seal)

Notary Public”

The Notary Seal contained Pitts’s name and notary number, and the future expiration date of his notary license.

The affidavit and jurat were accompanied by a further document called a “Uniform, All Purpose Certificate of Acknowledgment.”

The Certificate of Acknowledgment read:

UNIFORM, ALL PURPOSE CERTIFICATE OF ACKNOWLEDGMENT

(Must sign in addition to Jurat if signed outside of New York State)

“State of Oklahoma

County of Oklahoma

On the 20th day of September in the year of 2012 before me, the undersigned, personally appeared Josh Mills, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed same in his/her/their capacity(ies) and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in Oklahoma City, Oklahoma (insert the city or other political subdivision and the state or county or other place the acknowledgment was taken).”

“The “certificate” required by CPLR 2309(c), commonly referred to in case law as a “certificate of conformity,” must contain language attesting that the oath administered in the foreign state was taken in accordance with the laws of that jurisdiction or the law of New York (see Real Property Law § 299-a[1])”

“Here, the Supreme Court erred in concluding that the Mills affidavit was not accompanied by a certificate of conformity, as the “Uniform, All Purpose Certificate of Acknowledgment,” appended to the Mills affidavit, substantially conformed with the template requirement of Real Property Law § 309-b and constituted a certificate of conformity. The “Uniform, All Purpose Certificate of Acknowledgement” attested that the notary public, Mark R. Pitts, confirmed Josh Mills’s identity when Mills executed his affidavit in Pitts’ presence on the date the affidavit was executed, and was signed by Pitts alongside his notary seal. Moreover, since Mills’s signature upon the affidavit was acknowledged by a notary licensed in Oklahoma, no separate certificate of authentication was required (see Real Property Law §§ 299, 311[5]).”

The most important part of the opinion is here:

“Parenthetically, we note that even if the Mills affidavit was not accompanied by a certificate of conformity, the Appellate Division, Second Department, has typically held, since 1951, that the absence of a certificate of conformity is not, in and of itself, a fatal defect (see Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d at 680; Bey v Neuman, 100 AD3d at 582;Fredette v Town of Southampton, 95 AD3d at 941; Fallah v Stop & Shop Cos., Inc., 41 AD3d at 639; Smith v Allstate Ins. Co., 38 AD3d at 523; Raynor v Raynor, 279 App Div 671). The defect is not fatal, as it may be corrected nunc pro tunc (see U.S. Bank N.A. v Dellarmo, 94 AD3d 746), or pursuant to CPLR 2001, which permits trial courts to disregard mistakes, omissions, defects, or irregularities at any time during an action where a substantial right of a party is not prejudiced (see Matos v Salem Truck Leasing,105 AD3d at 917; Rivers v Birnbaum, 105 AD3d at 44; Betz v Daniel Conti, Inc., 69 AD3d at 545). Thus, even if the certificate of conformity was inadequate or missing, no substantial right of the defendants is prejudiced. As they failed to oppose the plaintiff’s motion or raise the issue, it was inappropriate for the Supreme Court to, sua sponte, do so on the defendants’ behalf (see Rosenblatt v St. George Health & Racquetball Assoc., LLC, _____ AD3d _____, 2014 NY Slip Op 02917 [2d Dept 2014]). ”

 

Failure to settle declaratiory judgment not fatal to summary judgment motion in underlying Civil Court action

New Milennium Medical Imagine, P.C. v. American Transit Ins. Co., Index #: 4588/13 (Civ. Ct. Kings Co. 2013)

The Appellate Term held this month that a Notice of Entry is not a necessary to enforce a judgment under a theory of collateral estoppel.  Of course, the next question to be asked is what happens when you obtain summary judgment in a declaratory judgment action, yet fail to enter a judgment on the underlying judgment?

Certain Plaintiff’s argue that the declaratory judgment is not enforceable.  Not surprisingly, certain judge’s followed that logic.  Enter Justice Ottley, who blew through the smoke and mirrors and held

“Plaintiff argues that due to defendant’s failure to demonstrate tha tit cimplied with the declaratory judgment order to settle judgment, defendant’s motion for a default judgment in the Supreme Court matter should be considered abandoned and result in the declaratory judgment order being deemed moot.  Contrary to plaintiff’s argument, the court finds that defendant’s failure to settle judgment within 60 days as proscribed, did not amount to defendant’s abandonment of the declaratory action.  Rather, defendant is entitled to settle judgment non pro tunc.  See, Elliott Zaretsky v. ok Hui Kin, et. al., 17 AD3d 455 (2d Dept. 2005)

Walking out of an EUO leads to a disclaimer and a whole lot more

American States Ins. Co. v Huff, 2014 NY Slip Op 05366 (1st Dept. 2014)

(1) “[p]laintiff’s motion for summary judgment as sought a declaration that plaintiff properly disclaimed coverage of its insured…”

(2) “Plaintiff commenced this action, in effect, seeking a declaration that it is not obligated to pay these no-fault benefits to defendants because, among other reasons, Huff failed to complete an examination under oath (EUO), as required by the subject insurance policy. Thus, plaintiff asserts that Huff breached a condition precedent to coverage under the policy, and defendant medical providers are not entitled to recover Huff’s no-fault benefits.”

(3) “We find that Supreme Court properly granted summary judgment in plaintiff’s favor. In support of its motion, plaintiff relied primarily upon Huff’s EUO, which was corroborated by the affidavit of plaintiff’s investigator who was present at the examination. The EUO established that Huff appeared for his EUO, but departed before questions regarding the accident and his injuries had been asked. The aborted EUO of Huff, the named insured, established a prima facie case that Huff had breached a condition precedent to coverage under the policy.”

(4) “In opposition, defendants do not dispute what occurred at the EUO. Instead, defendants argue that the transcript of the EUO was inadmissible. We find, however, that the EUO [*2]transcript of Huff was admissible evidence on the motion for summary judgment as it was certified by the court reporter and is considered a party admission (see Zalot v Zieba, 81 AD3d 935, 936 [2nd Dept 2011], lv denied 117 NY3d 703 [2011]))”

(5) “Insofar as defendants complain that plaintiff did not seek another EUO, the record demonstrates that Huff, represented by counsel, was advised of the ramifications of his refusal to continue the EUO, and confirmed that he understood.”

(6) “An assignee “stands in the shoes” of an assignor and thus acquires no greater rights than its assignor (see Arena Const. Co. v Sackaris & Sons, 282 AD2d 489 [2d Dept 2001]; see also Dilon Med. Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927, 930 [Civ Ct, Kings County 2005]). Since the defense of the breach of a condition precedent to coverage under the policy may indisputably be raised by plaintiff against Huff, it is available as against defendants, who accepted assignments of no-fault benefits (see Hammelburger v Foursome Inn Corp., 54 NY2d 580, 586 [1981]; Losner v Cashline, L.P., 303 AD2d 647, 648 [2nd Dept 2003]).”

This is perhaps the DJ of the year so far.  So many principles of law have been established and/or confirmed.  First, the medical provider and or assignor must cooperate with the EUO, i.e., attend it and answer questions.  Second, the failure to cooperate during the EUO through walking out during it, objecting too many times, engaging in obstructionist behavior can lead to a violation of a condition precedent to coverage, provided Park v. Long Island Insurance Company warnings are set forth.

The unsettled question that may play out now is: what constitutes obstructionist behavior?  We know the outter bounds of what constitutes this behavior.  But, how many objections is required before a disclaimer may be issued?  What happens if an EIP or medical provider lies during the EUO?  How does Utica v. Timms (you can lie and not lose your benefits) work into this equation?  There a lot of unanswered questions.  In my mind, the extremes will allow for a disclaimer.  Misrepresentations and a few inappropriate objections will probably not trigger a Huff remedy.

On top of that, the contents of the EUO transcript are admissible without further foundation against the medical provider.  Counsel for Defendant was successful at making that argument in Civil Court Kings County against me a few years ago, i.e., you cannot use the contents of the EUO transcript against the innocent assignee.  I thought it was an incredulous argument, which would be shot down at the Appellate Term or Appellate Division.

Funny enough, counsel in the Civil Kings case pressed his luck in front of the First Department and rightfully saw what five learned jurists had to say about that argument.  These are all good things in my mind.

I believe that this case is probably somewhere between the ATIC dj appeals and Unitrin as to its precedential value.

 

No reasonable excuse found

DTG Operations, Inc. v Excel Imaging, P.C., 2014 NY Slip Op 05030 (1st Dept. 2014)

(1) “In this declaratory judgment action seeking a declaration that the medical provider defendants have no right to collect no-fault benefits for medical services allegedly provided to the claimant defendants, defendants-respondents failed to offer a reasonable excuse for their default and a meritorious defenseIn this declaratory judgment action seeking a declaration that the medical provider defendants have no right to collect no-fault benefits for medical services allegedly provided to the claimant defendants, defendants-respondents failed to offer a reasonable excuse for their default and a meritorious defense”

(2) “In support of their motion to vacate the default, defendants-respondents submitted, among other things, the affidavit of their office and billing manager who stated that she “d[id] not recall” any court papers on this matter, but did not deny receiving any. She further stated that the office location had moved, but did not specify whether that move occurred before or after the date reflected in the affidavits of service. She further asserted that the “summons” did not provide any information from which to link this action to the claimant treated by defendants-respondents. However, the concise, 10-page complaint named defendants-respondents and claimants as defendants in the caption and plainly states that claimants sought medical treatment from defendants-respondents for which plaintiff sought a declaration that defendants-respondents were not entitled to reimbursement.”

(3)  “Further, defendants-respondents’ proffered defense, that the examinations under oath requested by plaintiff are improper, is contrary to law” (see 11 NYCRR 65-1.1).

Partial summary judgment declined after motion

Pollenex Servs., Inc. v GEICO Gen. Ins. Co., 2014 NY Slip Op 50953(U)(App. Term 2d Dept. 2014)

“Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied. We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).”