Familiarity with predecessor business record practice

US Bank N.A. v Ballin, 2018 NY Slip Op 01212 (2d Dept 2018)

“Thrasher averred, in relevant part, that her affidavit was based upon her review of Ocwen’s business records, and that upon review of such records, the note was physically transferred to the plaintiff on December 1, 2006. The plaintiff failed to demonstrate that the records relied upon by Thrasher were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Thrasher, an employee of Ocwen, did not attest that she was personally familiar with the plaintiff’s record-keeping practices and procedures (see Bank of N.Y. v Willis, 150 AD3d 652, 653; Arch Bay Holdings, LLC v Albanese, 146 AD3d 849, 852; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 652). Thus, the plaintiff failed to establish, prima facie, that it had standing to commence the action.”

The question as you could imagine is what is sufficient to prove sufficiency of a prior entities practices.

Why follow the law?

HSBC Bank USA, N.A. v Simmons, 2015 NY Slip Op 01609 (2d Dept. 2015)

“Since Justice Arthur Schack continues to ignore this Court’s precedent, as articulated in Wells Fargo Bank Minn., N.A. v Mastropaolo (42 AD3d 239), holding that the defense of lack of standing is waived if not raised by the defendant in an answer or pre-answer motion to dismiss (see Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566; HSBC Bank USA, N.A. v Taher, 104 AD3d at 817; U.S. Bank, N.A. v Emmanuel, 83 AD3d at 1048-1049; cf. Bank of N.Y. v Cepeda, 120 AD3d 451, 452; Bank of N.Y. v Mulligan, 119 AD3d 716, 716; Wells Fargo Bank, N.A. v Gioia, 114 AD3d at 767), we deem it appropriate to remit the matter to the Supreme Court, Kings County, for further proceedings on the complaint before a different Justice.”

Standing not expressly pleaded

Bank of Am., N.A. v Paulsen, 2015 NY Slip Op 01597 (2d Dept. 2015)

“Here, contrary to the conclusion reached by the Supreme Court, the appellant did not waive the issue of standing. Although the appellant’s answer did not raise standing as a separate defense, a fair reading of his answer reveals that it contained language which denied that the plaintiff was the owner and holder of the note and mortgage being foreclosed. Under such circumstances, the appellant was not required to expressly plead lack of standing as a defense”

This is interesting.  The Court held, in essence, that the denial of certain averments in the complaint was sufficient to raise the affirmative defense of lack of standing.  So, the more artfully a complaint is pleaded, the better the chance of a de-facto standing defense being proffered.

The securitization of debt does not divest party from having standing to prosecute action

American Express Bank FSB v Najieb, 2015 NY Slip Op 01177 (1st Dept. 2015)

“The securitization of plaintiff credit card issuer’s receivables did not divest it of its ownership interest in the account, and therefore did not deprive it of standing to sue to recover defendant’s overdue credit card payments”

This is interesting to say the least.

Unpreserved and without merit

Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co., 2014 NY Slip Op 51810(U)(App. Term 2d Dept. 2014)

“Defendant’s contention that plaintiff did not establish that it has standing to receive reimbursement of the first-party no-fault benefits to which its assignor is entitled because plaintiff failed to annex a copy of the assignment of benefits form executed by its assignor is not properly before this court, as this argument is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]). In any event, since the claim forms received by defendant stated that plaintiff’s assignor had executed an assignment and, as in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (9 NY3d 312, 319-320 [2007]), defendant was advised that the signature on the assignment was “on file,” defendant’s contention is devoid of merit (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319-320 [2007]).

Defendant’s remaining argument is likewise not properly before this court, as this argument is also being raised for the first time on appeal (see Joe, 88 AD3d 963) and, in any event, this argument lacks merit (cf. Radiology Today, P.C. v Mercury Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).”

Putting aside the ridiculousness of this appeal, an interesting question is raised.  Does Plaintiff have to show some indicia of standing in order to prevail on its summary judgment motion?  What happens if there was no “on-file” statement on the claim forms or AOB?  I suspect it would not matter, but this case makes that proposition interesting.

So you sued the TPA and not the insurance carrier – now what?

B&R Consol., LLC v Zurich Am. Ins. Co., 2014 NY Slip Op 06287 (2d Dept. 2014)

“The defendants’ contention that Zurich is not a proper party to this action under Insurance Law § 3420(b) because it did not issue the subject policy to Powell is without merit. Although the defendants made a prima facie showing that Zurich did not issue the subject policy by submitting a copy of the policy’s declaration page, which stated that the issuing company was American Guarantee, B & R established in opposition to the defendants’ motion and in support of its cross motion that an apparent agency relationship existed between Zurich and American Guarantee which extended potential vicarious liability to Zurich (see generally Hallock v State of New York, 64 NY2d 224, 231). In addition to the presence of Zurich’s logo on documents created and distributed by American Guarantee, B & R demonstrated that Zurich’s claims counsel was assigned to handle Powell’s case, that the assigned counsel was required to follow Zurich’s guidelines and to submit bills to Zurich, and that Powell was contacted by Zurich’s Customer Care Center regarding the claim and was directed to file his claim on Zurich’s website (see Fletcher v Atex, Inc., 68 F3d 1451, 1461-1462 [2d Cir]). This evidence of Zurich’s direct participation in the administration of Powell’s claim is sufficient to establish, prima facie, that an agency relationship existed between Zurich and American Guarantee such that Zurich may be held liable to B & R (see In re Parmalat Sec. Litig., 375 F Supp 2d 278, 295 [SD NY]). In opposition to B & R’s cross motion, the defendants failed to raise a triable issue of fact.”

Admittedly, this is an issue that never really concerned me personally.  I used to like watching a certain plaintiff attorney who has cluttered the Appellate Term with senseless appeals lose cases where he sued the TPA.  But the joy turned to anger when an insurance carrier called me on one of my Article 75 UM Petitions, demanded I discontinue against him because I sought to join a TPA as a proposed additional respondent and then demanded “costs” because I would not withdraw that branch of my Petition.

Alas, I will now have the last laugh 🙂

Major medical provider does not have standing to bring action against no-fault carrier

AETNA Health Plans v Hanover Ins. Co., 2013 NY Slip Op 33221(U)(Sup. Ct. Bronx Co. 2013)

In this case, Defendant provided no-fault services to Plaintiff’s Assignor.  Defendant cut-off Plaintiff’s Assignor, who then sought to have medical benefits paid for by Aetna.  When all was said and done, Aetna paid over $42,000 in benefits.  Plaintiff asserted a lien on its assignor’s personal injury case and its assignor sought arbitration with AAA.  The arbitrator found that since major medical paid for the benefits, the assignor could not maintain an case against no-fault carrier.  The master arbitrator affirmed.

Now, Plaintiff assigns whatever rights it has to the Assignee major medical carrier.  This does not go anywhere as is discussed in this opinion.

Just note that the lower arbitrator’s and master arbitrator’s decisions were wrong based upon Todaro v. Geico.

Assignment not necessary to make a prima facie case in an assigned first-party action; Prima Facie case

Urban Radiology, P.C. v GEICO Gen. Ins. Co., 2013 NY Slip Op 50850(U)(App. Term 2d Dept. 2013)

(1) Law requiring AOB

“The Civil Court dismissed the complaint, finding that plaintiff had not established a prima facie case because it had not offered into evidence an assignment of benefits.

While the claim forms at issue did not contain any language regarding an assignment of benefits, there is nothing in the record to indicate that defendant timely objected to the completeness of the forms or sought verification of the existence of a valid assignment. Accordingly, defendant waived any defense based thereon (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. [*2]Co., 21 AD3d 348 [2005]).”

(2) What is a prima facie case

“Contrary to defendant’s contention, at a trial, unlike upon a provider’s motion for summary judgment, a provider is not required to “show that there is no defense to the cause of action or that the cause of action or defense has no merit” (CPLR 3212 [b]). Rather, it is defendant’s burden to show that it has a meritorious defense (see generally Seaboard Sur. Co. v Gillette Co., 64 NY2d 304 [1984]; Northrup v Blue Cross & Blue Shield of Utica-Waterdown, 235 AD2d 1022 [1997]; 70 NY Jur 2d, Insurance § 1493) and that such a defense is not precluded (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).”

Considering that the validity of an AOB is a defense, in both no-fault and non-no-fault litigation, this makes sense.  The prima facie rule is weird.  It promotes more trials where traditional Mary Immaculate and Dan Medical would control over Avenue T v. Auto One.  I think the Court is probably stretching 3212(b) if it really believes that submission of a bill is sufficient for purposes of trial but not for summary disposition.

The first application of the new precludable independent contractor rule

W & Z Acupuncture, P.C. v Unitrin Auto & Home Ins. Co., 2012 NY Slip Op 52400(U)(2d Dept. 2012)

Insurance carrier sought an EBT of the medical provider based upon the “independent contractor” defense.  Until three months ago, this defense escaped preservation.  Not so anymore.   The Court was therefore constrained to reverse the Civil Court:

“In an affirmation in support of defendant’s motion to compel, defendant’s attorney argued that the treating acupuncturists were not plaintiff’s employees; rather, they were independent [*2]contractors and, therefore, plaintiff was ineligible to recover the assigned no-fault benefits at issue. However, defendant’s denial of claim forms did not deny plaintiff’s claims on the ground that the treatment at issue had been rendered by independent contractors. Therefore, defendant is precluded from asserting that ground for denial of coverage as a defense in this litigation (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., ___ AD3d ___, 2012 NY Slip Op 06902 [2d Dept, Oct 17, 2012]). Consequently, the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT in support of this defense should have been denied, as this discovery demand is palpably improper.”

Assignment valid during unresolved lawsuit

Citibank, N.A. v Van Brunt Props., LLC, 2012 NY Slip Op 03974 (2d Dept. 2012)

In the world of multiple assignments, it is sometimes asked whether you can assign a chose of action or an interest in something after the commencement of a lawsuit?  The answer is “yes” and an order concomitantly amending the caption is also deemed proper:

“Finally, contrary to the defendant mortgagor’s contention, the documents submitted by the plaintiff established that the subject note and mortgage were validly assigned to Wells Fargo Bank, N.A., after the commencement of this action, and that Wells Fargo Bank, N.A., is therefore now the real plaintiff in interest. Under these circumstances, the Supreme Court should have granted the plaintiff’s motion to substitute Wells Fargo Bank, N.A., as the plaintiff in this action, and to amend the caption accordingly (see CPLR 1018, 3025[b]; Deutsche Bank Trust Co., Americas v Stathakis, 90 AD3d 983; Maspeth Federal Savings and Loan Ass’n v Simon-Erdan, 67 AD3d 750, 751; East Coast Props. v Galang, 308 AD2d 431).”