Certified transcripts

July, P.T., P.C. v Metropolitan Group Prop. & Cas. Ins., 2022 NY Slip Op 50302(U)(App, Term 2d Dept. 2022)

“Contrary to plaintiff’s sole contention on appeal, the affidavit by defendant’s special investigator who was scheduled to conduct the EUOs, accompanied by certified transcripts of the EUOs, established that the assignor had failed to appear at either of the EUOs”

As I now understand the law, the certified transcript is useless unless a credibility challenge exists as to the affiant’s personal knowledge of what occurred?.

NF2 v. NF3 v. no attempt to find the Assignor

AB Quality Health Supply Corp. v Nationwide Ins., 2022 NY Slip Op 50299(U)(App. Term 2d Dept. 2022)

“The Civil Court held that there is an issue of fact as to whether the EUO scheduling letters were properly mailed to plaintiff’s assignor. While the address on the scheduling letters to the assignor matched the address on the NF-3 forms plaintiff had provided to defendant, it did not match the address set forth on the assignment of benefits form.”

” Moreover, we find, contrary to the determination of the Civil Court, that, since the address to which defendant mailed the EUO scheduling letters to the assignor matched the address contained on the NF-3 forms plaintiff provided to defendant, defendant established, prima facie, that the letters had been properly mailed to plaintiff’s assignor”

To beat this motion, Assignor would have had to provide an affidavit that his/her address was found on NF-2 (s)he signed and the NF-3 address had no basis in reality. And even then, if the notice was mailed to the PI attorney, the assignor may lose on agency theory.

Now let me share some reality. With an attorney of 20% and a standard NF bill (no retainer), I am not going out of my way to disrupt Defendant’s summary judgment motion. At $450-$650 per hour, the assignor will be located and will sign the appropriate affidavit if the facts fit it.

EUO’s and bust statements

Charles Deng Acupuncture, P.C. v Titan Ins. Co., 2022 NY Slip Op 50300(U)(App. Term 2d Dept. 2022)

“Under CPLR 4518 (a), a business record—a “writing or record” that is “made as a memorandum or record of any act, transaction, occurrence or event”—will be admissible as proof of the acts, transactions, occurrences or events recorded, if the court finds that the record “was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.” A transcript is a record of words that were uttered; while those words may describe an event, transcripts are generally not made as a memorandum or record of the event described. Here, defendant did not show a sufficient basis to admit counsel’s hearsay statements or that these transcripts should otherwise be treated as admissible pursuant to CPLR 4518 (a). Indeed, even if the transcripts could be treated as a “memorandum or record” of a nonappearance, rather than of a statement, there is no basis on this record to find that the record “was made in the regular course of any business” or “that it was the regular course of such business to make” a transcript as such a “memorandum or record” of a nonappearance (CPLR 4518 [a]).”

“We note that, while CPLR 3117 specifically permits deposition transcripts to be admitted into evidence at trials under certain circumstances, the CPLR is silent when it comes to EUO transcripts. To use a deposition transcript as evidence in chief at trial, as defendant attempted to use the EUO transcripts here, one of the requirements of CPLR 3117 (a) (3) must be met. Even if the transcripts at issue were to be treated as EUO transcripts notwithstanding that no examination took place, since, here, there was no showing that any of the grounds to permit the use of a deposition transcript were met, we need not decide whether CPLR 3117 (a) (3) can be extended to the use of EUO transcripts.”

“As defendant relied exclusively upon the transcripts of the “bust” statements to prove, at trial, that plaintiff failed to appear at the EUOs, and those transcripts were not properly admitted into evidence, defendant did not sustain its burden of proving that plaintiff had failed to appear for EUOs.”

“We note that, while CPLR 3117 specifically permits deposition transcripts to be admitted into evidence at trials under certain circumstances, the CPLR is silent when it comes to EUO transcripts. To use a deposition transcript as evidence in chief at trial, as defendant attempted to use the EUO transcripts here, one of the requirements of CPLR 3117 (a) (3) must be met. Even if the transcripts at issue were to be treated as EUO transcripts notwithstanding that no examination took place, since, here, there was no showing that any of the grounds to permit the use of a deposition transcript were met, we need not decide whether CPLR 3117 (a) (3) can be extended to the use of EUO transcripts.”

“As defendant relied exclusively upon the transcripts of the “bust” statements to prove, at trial, that plaintiff failed to appear at the EUOs, and those transcripts were not properly admitted into evidence, defendant did not sustain its burden of proving that plaintiff had failed to appear for EUOs.”

When the best evidence of a no-show is prohibited from being used at trial and, concomitantly on motion as it is not in affidavit form, does this mean the requisite proof to prove an EUO no-show has reached the so-called impossible level?

The one orthopedist rule

Abdelfattah v Trevicano,2022 NY Slip Op 02383 (2d Dept. 2021)

“The defendants moved, inter alia, to direct the plaintiff to comply with the July 2019 [*2]order by submitting to additional medical examinations by specialists of defense counsel’s choosing. The plaintiff opposed, contending that the defendants could not direct the plaintiff to submit to a medical examination by a second expert. In the order appealed from, dated December 16, 2019, the Supreme Court, inter alia, granted the defendants’ motion to the extent of directing the plaintiff to submit to a medical examination by Dr. Miller, who previously examined the plaintiff. The defendants appeal from so much of the order as required them to designate Dr. Miller as the doctor who would perform the additional examination.

CPLR 3121(a) provides that where the physical condition of a party is in controversy, “any party may serve notice on another party to submit to a physical . . . examination by a designated physician.” There is no restriction in CPLR 3121(a) limiting the number of medical examinations. However, a defendant seeking an additional medical examination must demonstrate the necessity for it (see Harris v Christian Church of Canarsie, Inc., 147 AD3d 818, 818). A plaintiff may challenge a defendant’s choice of an examining physician based upon a claim of bias against the plaintiff or his or her attorney by the designated examining physician or prejudice against the plaintiff if that examining physician is allowed to testify at trial (see Lewis v John, 87 AD3d 564, 565).

Here, the plaintiff does not dispute the need for an additional medical examination. However, the plaintiff has demonstrated that he would be prejudiced by permitting a second board-certified physician to examine the same part of his body and to produce a second defendants’ medical examination as to the same physical condition that was reported on by Dr. Miller before the spinal fusion, which would enable the defendants to have a second physician of the same specialty testify against the plaintiff for the same physical injury (see Vailes v Molloy College, 2019 NY Slip Op 33931[U], *3 [Sup Ct, Nassau County]; Ocampo v City of New York, NYLJ 1202573727112 [Sup Ct, Queens County]).

Moreover, the defendants have not demonstrated the necessity for permitting the additional medical examination to be performed by a physician other than Dr. Miller, a board-certified orthopedic surgeon. The plaintiff notified the defendants of his allegation that he needed spinal surgery in his bill of particulars dated October 12, 2017, which was served before the defendants chose Dr. Miller to conduct the first medical examination. The defendants did not provide any reason that it was necessary for a different physician to conduct the additional medical examination after the spinal surgery. Since the plaintiff has demonstrated that under the circumstances presented here, permitting an additional orthopedic surgeon to examine and produce a second defendants’ medical examination report on the same body part previously examined by the defendants’ initially selected orthopedic surgeon, who could then testify at trial, would result in prejudice against him, the Supreme Court providently exercised its discretion in directing the plaintiff to submit to a medical examination by Dr. Miller, who previously examined the plaintiff.”

This has a direct application to PIP. The reasons being that it is often the case that PIP orthos testify in a BI trial. It therefore begs the question whether it is proper to have multiple othopedists perform an IME on an Assignor.

On a pure PIP side, the occurrence could happen where multiple exams become necessary, and should a carrier have the opportunity to show case the findings of two board certified ortho that lead to the conclusion further treatment is not warranted or that the EIP has reached their pre accident condition?

Untimely 4404(a) motion

Galarza v Heaney, 2022 NY Slip Op 02395 (2d Dept. 2022)

Court reinstated a 1.2 million dollar verdict. You ask why?

“The Supreme Court should have denied the defendants’ motion pursuant to CPLR 4404(a) as untimely, as it was made more than 15 days after the jury verdict was rendered, without good cause shown for the delay”

The trick here is to ask the Court once the jury leaves to set forth a briefing schedule. If not possible, work overtime to get the motion out. If still not possible, make sure you appeal from the judgment and perfect off an appendix if need be. This was a disaster.

Not denying in 30-days proves fatal

Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co., 2022 NY Slip Op 02406 (2d Dept. 2021)

In a Court that on paper is overly deferential to arbitration decsisions on the basis that mistakes of law are allowed, we tend to see decisions that, on paper, seem better suited for the First Department. This case really highlights the tension between the two Departments.

(1) ” “If the master arbitrator vacates the arbitrator’s award based upon an alleged error of ‘a rule of substantive law,’ the determination of the master arbitrator must be upheld unless it is irrational” (id. at 576 [internal quotation marks omitted]; see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168).”

(2) “The Supreme Court erred in denying the petition, inter alia, to vacate the award of the master arbitrator, as there was no rational basis to support the award. The master arbitrator’s determination that a denial of liability based upon a failure to appear at an examination under oath constitutes a defense of lack of coverage, which is not subject to preclusion, is irrational (see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d at 1168; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-1047).”

(3) “Further, the master arbitrator’s application of 11 NYCRR 65-3.5(p) is irrational, as it effectively allows an insurer to avoid the statutory timeliness requirements set forth in 11 NYCRR 65-3.8(a). Where, as here, the initial request for an examination under oath is sent more than 30 days after receipt of the claim, the request is a nullity (see Excel Prods., Inc. v Farmington Cas. Co., 71 Misc 3d 137[A], 2021 NY Slip Op 50441[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists]), and the insurer’s failure to timely notice the examination under oath is not excused by 11 NYCRR 65-3.5(p)”

What did we learn here? Plenty! A finding that a disclaimer is not required for what some could call a post loss condition precedent to coverage, a/k/a, condition subsequent. The net effect of this means that the substantive law to be applied is based upon the court that ultimately is called upon to confirm or vacate an arbitration award. Very slippery.

The second issue involves 11 NYCRR 65-3.5(p). This involves extensions of times to perform acts under the regulations. Insofar as a time to pay, deny or take legally cognizable action extends beyond 30-days after a bill is received, it is deemed a nullity. The Court leaves open the failure to timely serve a follow-up verification request.

And the Second Department acknowledges that an action taken between 15 business day and 30 calendar days is valid. A regulatory cornucopia

Conditional order of preclusion absolves a willfulness inquiry

Langona v Village of Garden City, 2022 NY Slip Op 01995 (2d Dept. 2022)

“As a result of the defendant’s failure to adequately comply with the discovery demands on or before the deadline imposed in the conditional order, the conditional order, which was served upon the defendant with notice of entry, became absolute (see Von Maack v Wyckoff Hgts. Med. Ctr., 195 AD3d 769, 771; Williams v Davita Healthcare Partners, Inc., 172 AD3d 791Williams v Suttle, 168 AD3d 792, 794; State Farm Mut. Auto. Ins. Co. v Anikeyeva, 130 AD3d 1007, 1007-1008). Although the defendant contends that its behavior was neither willful nor contumacious, “‘[w]ith this conditioning, the court relieves itself of the unrewarding inquiry into whether a party’s resistance was wilful'” (Matter of Metro-North Train Acc. of Feb. 3, 2015, 178 AD3d 929, 931, quoting Gibbs v St. Barnabas Hosp., 16 NY3d 74, 82 [internal quotation marks omitted]).

Sufficient for a default

State Farm Mut. Auto. Ins. Co. v AK Global Supply Corp., 2022 NY Slip Op 01890 (1st Dept. 2022)

In the staged accident paradigm, what is enough to make a prima facie showing of staged accident?

“Plaintiff’s Claim Specialist, Danette Rodriguez submitted an affidavit stating that the policy was procured online to an Albany address 22 days before the collision, that the collision occurred late at night in Queens County, far from Albany, and that the adverse driver, Alister Brown, told the police he did not believe that the claimants were in the insured vehicle at the time of the collision. She stated further that the claimants began undergoing elaborate and mirror treatments the next day, although the police accident report showed no reported injuries at the scene and no damage to either car. Moreover, during an interview with plaintiff, the alleged driver of the insured vehicle, Oneil Pierrisaint, denied ever driving the vehicle, knowing any of the claimants, or knowing Loiseau’s name, which led plaintiff to conclude that Pierrisaint’s identity had been stolen by John Doe, the unknown driver. Finally, Evans Julce, a witness to the collision, stated in an affidavit that the insured vehicle seemed to have collided with Brown’s car intentionally”

I think this is “overkill”. If you were to measure the staged accident proof against this standard, most cases would not pass muster. I think the case Justice Devin Cohen wrote about a few weeks ago is the prime example of what is needed in the circumstantial case.

I also like this case because it is clear that the 15 business day time period is measured against receipt of the NF-3. ” Documentary evidence shows that plaintiff sent the EUO scheduling letters to the claimants within 15 business days of receiving the prescribed verification forms (in this case, NF-3 forms), as required (see 11 NYCRR 65-3.5[b]; Hertz Vehicles, LLC v Best Touch PT, P.C.,162 AD3d 617 [1st Dept 2018]). Contrary to the motion court’s calculation of the 15-day period as starting from plaintiff’s receipt of the claimants’ NYS Form NF-2s, the NYS Form NF-2 is not a “prescribed verification form[],” but an application for no-fault benefits (11 NYCRR 65-3.5[b])….”

Again, I am a proponent of well supported declaration judgment actions. This is a great example of one. I earnestly believe that EIP attorneys and provider attorneys who have to forage through American Transit’s nonsense Declaratory judgment actions and get them dismissed – which requires multiple rounds of motion practice – should be entitled to their attorneys fees. Contrariwise, the EIP attorney or provider attorney who is confronted with something like this should just walk away.

Verification?

State Farm Mut. Auto. Ins. Co. v Burke Physical Therapy, P.C., 2022 NY Slip Op 30580(U)(Sup. Ct. Nassau Co. 2022)

The provider goes to the EUO and gets bombarded with post EUO demands that are the functional equivalent of a proctology examination. Provider objects, 120-days pass and the disclaimer is issued. Is that disclaimer valid?

The Court struggled with this one and said this cannot be answered at the summary judgment stage.

“In this Court’s view, only one conclusion can be drawn-that on the precise question at issue here, the law is unsettled. To the extent that the Court finds one position more persuasive than the other, the Court is of the opinion that for purposes of the determination herein, it is of no import. What matters is the reasonableness of BURKE’s justification{or refusing to provide the documents sought. In the absence of a clear answer as to whether or not STATE FARM was entitled to obtain the numerous documents sought at the verification stage of the claims, the Court cannot find, as a matter of law, that BURKE’s justification was unreasonable. Accordingly, the Court cannot find, as a matter of law, that BURKE failed to satisfy its obligation under 11 NYCRR 65-3.5(0) to offer, within 120 days, “written proof providing reasonable justification for the failure to comply.” The Court thus finds that, on the record presented, STATE FARM has failed to meet its burden to establish a right to disclaim coverage. See TAM Medical Supply Corp. v Tri State Consumers Ins. Co., 57 Misc 3d 133(A) (App Term, 2d Dept., 2d, !Ith & 13th Jud. Dists. 2017).”

Do not ask me for an opinion. I understand what the carrier is trying to do, and it falls within the literal context of the regulations. Yet, are these demands better propounded as discovery demands in the context of litigation or arbitration? At what point is the verification protocol abused or do the equities fall in favor of casting the verification demands as discovery devices better suited during the dispute resolution phase of the claim?

Causation defense fails when ROM diminishment not explained

Shah v Nowakowski, 2022 NY Slip Op 01952 (4th Dept. 2022)

“Contrary to defendant’s contention, her own submissions in support of the motion raise triable issues of fact whether the motor vehicle accident caused plaintiff’s alleged injuries (see Carter v Patterson, 197 AD3d 857, 858 [4th Dept 2021]; Schaubroeck v Moriarty, 162 AD3d 1608, 1609 [4th Dept 2018]). Defendant submitted the report of her expert physician, who concluded that plaintiff’s injuries were either preexisting or degenerative in nature. The report of defendant’s expert, however, “does not establish that plaintiff’s condition is the result of a preexisting [or] degenerative [condition] inasmuch as it fails to account for evidence that plaintiff had no complaints of pain prior to the accident” (Carter, 197 AD3d at 858 [internal quotation marks omitted]). Further, defendant’s expert failed to address plaintiff’s medical records, which noted that plaintiff’s range of motion had further decreased by 25% after the accident”

I feel like we almost have to look to the Fourth Department for common sense solutions to our auto negligence legal problems…