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]).”

Where did 4518 come from?

Eagle Surgical Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 2014 NY Slip Op 50950(U)(App. Term 2d Dept. 2014)

“Contrary to plaintiff’s sole contention on appeal, the affidavits and documents submitted by defendant in support of defendant’s motion were sufficient to establish that the denial of claim form had been timely mailed (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]; see also CPLR 4518).”

As we all know, a business record foundation is not necessary to demonstrate that a denial is timely as the document is not used for a non-hearsay purpose.  Perhaps, this is interesting because Allstate apparently lost on anther mailing case, with presumably similar affidavits. Yet, in this case, “4518” was the elixir that righted where something was wrong.  Or, was this just a new set of law clerks at the Appellate Term who saw seeing these cases differently?  These are questions I just do not have the answers to.

Notice of Entry is not what some think it means

All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 2014 NY Slip Op 24161 (App. Term 2d Dept. 2014)

(1) In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Devin P. Cohen, J.), on November 12, 2010, granted defendant’s motion for summary judgment dismissing the complaint. Nevertheless, the action subsequently proceeded to trial before Judge Johnny Lee Baynes. At the nonjury trial, defendant’s counsel advised the court of the existence of the summary judgment order and that the order had been issued in open court following oral argument. However, the court ruled that the order was not binding because it had not been served with notice of entry on plaintiff’s counsel. Following the trial, judgment was entered in favor of plaintiff in the principal sum of $1,061.63.

(2) (And for this, Justice Baynes was elevated to Supreme Court.  Yet, how many Supreme Court orders granting declarations of non-coverage [always out of Kings] have been nullified  due to the Civil Kings rule that the failure to serve an order with notice of entry means it never happened.  I shake my head when I see some of these short form orders, but then I say to myself, it is Civil Kings, nothing should surprise me)

(3) “A grant of summary judgment is the procedural equivalent of a trial (see Falk v Goodman, 7 NY2d 87, 91 [1959]; News Am. Mktg., Inc. v Lepage Bakeries, Inc., 16 AD3d 146 [2005]), and an order granting such relief is as final and as conclusively determinative of all issues in an action as is a judgment after trial (see Engel v Aponte, 51 AD2d 989 [1976]; Riley v Southern Transp. Co., 278 App Div 605 [1951]). Thus, since the grant of summary judgment operates as a final determination on the merits of the claims in question, once a court has granted such a motion based on the facts adduced before it, the doctrine of res judicata applies (see Buckley & Co. v City of New York, 121 AD2d 933 [1986]; Cebron v McBride Dev. Corp., 93 AD2d 876 [1983]; Eidelberg v Zellermayer, 5 AD2d 658 [1958], affd 6 NY2d 815 [1959]), as does the doctrine of law of the case. Therefore, an order granting summary judgment is binding on all other judges of coordinate jurisdiction (see Carbon Capital Mgt., LLC v American Express Co., 88 AD3d 933 [2011]), and the conclusive effect of such an order may not be fatally [*2]undermined, as it was here, by allowing the party whose action was dismissed a second chance to litigate the matter

(4) “We note in passing that, under the circumstances presented, even if the trial court thought that the order granting summary judgment was not enforceable at the time of trial, the better practice would have been to exercise its discretion and grant defendant’s counsel’s request for an adjournment so as to afford defendant an opportunity to take any steps necessary to render the order enforceable instead of wasting scarce judicial resources conducting a trial after summary judgment had already been granted to defendant.”


Stipulation does not serve as collateral estoppel

All Boro Psychological Servs., P.C. v Allstate Ins. Co., 2014 NY Slip Op 50870(U)(App. Term 2d Dept. 2014)

Remember the stipulation where the releasee agreed that the medical provider was properly formed and complied with all applicable licensing laws?  At some point, you might have signed one and rued the consequences for the carelesness.  Well, today, it is okay.

(1) “With respect to defendant’s cross motion, plaintiff contends that defendant is not entitled to any discovery regarding whether plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) because defendant previously entered into stipulations, in unrelated actions, which, among other things, stated that, as of the date the stipulations were entered into, plaintiff was “in full compliance with any licensing requirements affecting its right to obtain reimbursement under the applicable No Fault laws and regulations.” However, as the issue was [*2]resolved in a stipulation and not after it was actually litigated, the doctrine of collateral estoppel is inapplicable”

But the SIU file?  It is discoverable.

(2) “To avoid having to produce its SIU file, defendant had to establish that its SIU file was prepared solely for litigation (Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98, 101 [1986]; see also Bombard v Amica Mut. Ins. Co., 11 AD3d 647 [2004]). As defendant failed to demonstrate that it had decided to deny plaintiff’s claims prior to commencing its investigation, the contents of defendant’s SIU file are not privileged and are discoverable (Bombard, 11 AD3d at 648).”

And of course, Mallela discovery is always allowed

(3) “Contrary to plaintiff’s contention, defendant sufficiently demonstrated that defendant’s discovery demands which concerned a Mallela defense are “material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]; All Boro Psychological Servs., P.C. v Allstate Ins. Co., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153[A], 2012 NY Slip Op 50342[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Defendant further established its entitlement to depose Vladimir Grinberg and plaintiff’s owner, Dr. John Braun”

Another IME no-show victory shrowded in American Transit citations

Healthy Way Acupuncture, P.C. v Allstate Ins. Co.,  2014 NY Slip Op 50841(U)(App. Term 1st Dept. 2014)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).Accordingly, when [plaintiff’s]; assignor[]; failed to appear for the requested medical exams, [defendant]; had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).”

This is a fitting decision as the author of this appeal was my co-author in American Transit v. Solorzano, James F. Sullivan, Esq.

Finally, I was informed that Plaintiff’s main argument was that the IME letters were sent more than 15-business to 30-calendar days after receipt of no-fault billing, therefore the IME letters were not timely.  If I were writing this decision, I would state clearly that the time frames deal with the 10-day follow-up period and that the a denial is not needed.  While the Court reaches this conclusion, it never spells it out.  I believe some of the appeals from Justice Billings’ decisions will force the Court to explicitly spell out the “time frames” the Court is referencing.

Motion to strike “3212(g) findings” denied

EMC Health Prods., Inc. v Geico Ins. Co., 2014 NY Slip Op 50786(U)(App. Term 2d Dept. 2014)

“On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor. Defendant’s denials admitted the receipt of the bills at issue (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U]; [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), and plaintiff was not required to establish a CPLR 4518 foundation for the bills (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]).”

Here is the unanswered question.  Can a Plaintiff appeal the finding of a judge who refuses to make these 3212(g) findings?

Speak your mind in the wrong forum? It will cost you. Fail to supervise your employees? A price will be paid.

Promed Durable Equip., Inc. As Assignee of Shavonne Flinch v Geico Ins., 2014 NY Slip Op 72449(U)(App. Term 2d Dept. 2014)

You can read this.   From the opinion (a quotation from the offending brief): “the recent Park Slope decision is replete with foundationless claims and misunderstandings of both law and argument.  The funny thing is there is nothing to be done about it, except go to the Court of Appeals given the unavailability of the Appellate Division, Second Department. It seems clear from discussion with Plaintiff firms and judges that there is an agreement that this Appellate Term will redefine the laws of evidence in order to suit the insurance company business model, while at the same time the Appellate Division will not accept cases from the Appellate Term.”

While the text of what was said was perhaps overboard, the substance might have merit.  See  Matter of State of New York v Floyd Y., 22 NY3d 95 (2013)

And as an employer, keep your eyes open: “With respect to Ilona Finkelshteyn, Esq., the name of whose law firm appears on each brief submitted by Mr. Vitarelli, the court finds that “in the exercise of reasonable management or supervisory authority, [Ms. Finkelshteyn] knew [as alleged by Mr. Vitarelli] or should have known” of Mr. Vitarelli’s conduct (Matter of Berkman, 55AD3d 114, 117 [2008]) and failed, under the circumstances, to adequately supervise the work submitted by Mr. Vitarelli, which bore Ms. Finkelshteyn’s name (see Matter of Shapiro, 55 AD3d 291 [2008]).”


Collateral estoppel again

Clark v Farmers New Century Ins. Co., 2014 NY Slip Op 03311 (3d Dept 2014)

The equitable doctrine of collateral estoppel precludes a party from relitigating an issue when it was clearly raised in a prior action or proceeding and decided against that party in a final judgment on the merits after a full and fair opportunity to be heard (see Matter of Feldman v Planning Bd. of the Town of Rochester, 99 AD3d 1161, 1162-1163 [2012]; Beneficial Homeowner Serv. Corp. v Mason, 95 AD3d 1428, 1429 [2012]; Gadani v DeBrino Caulking Assoc., Inc., 86 AD3d 689, 691 [2011]). Thus, “‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy’” (Matter of Feldman v Planning Bd. of the Town of Rochester, 99 AD3d at 1163, quoting O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; see O’Connor v Demarest, 74 AD3d 1522, 1523-1524 [2010]). In the Basco action, Supreme Court found that plaintiff failed to proffer objective medical evidence to demonstrate that she suffered any causally-related serious injury within the meaning of Insurance Law § 5102 (d), and this Court affirmed that order. As proof of a serious injury is a condition precedent to maintaining a SUM action for noneconomic loss (see Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 205 [2007]; see also 11 NYCRR 60-2.3 [f]), Supreme Court properly awarded defendant summary judgment based upon collateral estoppel with regard to plaintiff’s claim for noneconomic damages. As plaintiff argues, recovery of damages for economic loss in excess of basic economic loss does not require proof of a serious injury

I am curious how Huntington v. Travelers can remain good law when the court holds that once a claim is brought to a final conclusion, it is over.  Here, Defendant proved lack of serious injury and Plaintiff failed to raise an issue of fact.  If the waxing and waning of pain is sufficient to defeat a medical necessity motion, then this 4 judge panel in Albany cannot with a straight face preclude a subsequent challenge to a serious injury findings.  What if Ms. Clark had a bad a few bad days after she got non-suited.  Shouldn’t she have the right to do what Huntington Regional Chiro does and file another suit or an SUM arbitration for later pain a nd suffering?  The Appellate Term, Second Department would have us think that.  If I wax, I can beat collateral estoppel.



EUO no-show DJ is successful (for the most part)

IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 2014 NY Slip Op 02902 (2d Dept. 2014)

It is well established that the failure to comply with the standard policy provision requiring disclosure by way of submission to an examination under oath, as often as may be reasonably required, as a condition precedent to performance of the promise to indemnify, constitutes a material breach” of the policy, precluding recovery of the policy proceeds (Bulzomi v New York Cent. Mut. Fire Ins. Co., 92 AD2d 878, 878; see Interboro Ins. Co. v Clennon, 113 AD3d 596; Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 487-488). In support of that branch of its motion which was for summary judgment, the plaintiff, upon renewal, submitted evidence establishing “that it twice duly demanded an examination under oath” from the assignees, that the assignees twice failed to appear, and that the plaintiff “issued a timely denial of the claims” arising from the assignees’ provision of medical services to the assignors (Interboro Ins. Co. v Clennon, 113 AD3d at 597). Based upon the foregoing, the plaintiff established its prima facie entitlement to judgment as a matter of law. see id.; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721).

“The assignees also failed to raise a triable issue of fact as to the reasonableness or propriety of the demands for the examinations under oath”

“In light of our determination, we need not reach the plaintiff’s remaining contention.”

The Court did not cite to Unitrin, but instead cited to Fogel and Clennon.  It appears that Clennon is now the new Westchester Lincoln, except the carrier won Clennon.  The Court punted the pure Unitrin coverage issue; my hope is that whoever brings this argument has a good record with which to work.