Time period

Matter of Miller v Annucci, 2021 NY Slip Op 04954 (2021)

(1) “CPLR 5515 (1) provides that an appeal is taken when, in addition to being duly served, the notice of appeal is “fil[ed] . . . in the office where the judgment or order of the court of original instance is entered.” The CPLR further clarifies that “papers required to be filed shall be filed with the clerk of the court in which the action is triable” (CPLR 2102 [a]). Thus, by its express terms, the CPLR indicates that filing occurs when the clerk’s office receives the notice of appeal. Indeed, “filing” has long been understood to occur only upon actual receipt by the appropriate court clerk (see Matter of Grant v Senkowski, 95 NY2d 605, 608-609 [2001]; see also Sweeney v City of New York, 225 NY 271, 275 [1919]). A “mailbox rule” for filing would also contravene the clear distinctions between filing and service drawn by the legislature inasmuch as the CPLR directs that, unlike filing, “service by mail shall be complete upon mailing” (CPLR 2103 [b] [2]). We are not free to disregard the statutory text defining when filing and service occurs, or to otherwise endorse an exception to the relevant CPLR provisions that has not been adopted by the legislature (see Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55, 60 [2013]; Matter of Grant, 95 NY2d at 608-610).”

(2) “Petitioner’s reliance on Houston v Lack (487 US 266, 268 [1988])—where the Supreme Court of the United States deemed a pro se prisoner’s notice of appeal to be filed within the meaning of the Federal Rules of Appellate Procedure when delivered to prison officials—is misplaced. As we have explained, the Supreme Court’s authority to interpret the Federal Rules—promulgated and adopted by the Court itself—”exceeds our authority in interpreting the CPLR, which consists of statutory provisions that we are constrained to interpret so as to give effect to the will of the Legislature” and, here, “the Legislature’s intent to treat” a notice of appeal “as ‘filed’ upon the actual receipt of those papers by the clerk of the court—rather than upon delivery to prison authorities for forwarding to the court—is manifest from the statute’s language and purpose” (Matter of Grant, 95 NY2d at 608).”

(3) Nonetheless, as respondent points out, the legislature has given courts the authority to excuse untimely filing under certain circumstances. CPLR 5520 provides that, “[i]f an appellant either serves or files a timely notice of appeal . . . , but neglects through mistake or excusable neglect to do another required act within the time limited, the court from or to which the appeal is taken . . . may grant an extension of time for curing the omission” (CPLR 5520 [a]). Here, the basis of the Appellate Division order of dismissal is unclear. While we can determine that the filing was untimely as a matter of law, we cannot discern whether the Appellate Division dismissed based on untimely filing alone, whether the court determined if timely service was established, and—if so—whether the court considered that it could exercise discretion to excuse the untimely filing under CPLR 5520. Accordingly, we reverse and remit for further proceedings (see M Entertainment, Inc. v Leydier, 13 NY3d 827, 829 [2009]).”


Why did I publish this? It is interesting from the standpoint that the CPLR is a roadblock that Courts cannot surpass, as opposed to the Fed. R. Civ. Pro or the other states out there that utilize court rules to address disputes.

80% of 200% of Medicare


GEICO, regardless of where they do business, always has their own view of the law. Here, the provider submitted a bill less than the fee schedule. GEICO decided to pay it at 80% of the billed amount. The rule in Fla is that the floor is the lesser of the bill or 80% of 200% of the FS. Simple issue but now GEICO has a $100,000 attorney fee bill to pay on this I am sure.

“We hold that when an insurer chooses to reimburse according to scheduled rates, it must pay 80 percent of 200 percent of the statutorily adopted applicable fee schedule.1 There is nothing in the statutory scheme that permits a PIP insurer to limit reimbursements to 80 percent of the billed amount.”

The case is interesting because it construes certiori (which was granted) and then constures the new post 2021 plenary jurisdiction that the District Courts of Appeal have over County Court matter. Procedural fans will love the case; statutory textualists will ask what the heck GEICO was doing. Common sense always ask when you are looking at 6 figure attorney fee awards on a $10k policy, why fight some of these issues?

A resubmission does not restart the pay or deny clock

A.C. Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2021 NY Slip Op 50841(U)(App. Term 2d Dept. 2021)

” Plaintiff claimed, in the papers submitted in support of its amended cross motion, that, in March]2017, it had submitted two bills dated March 29, 2017 to defendant, for services rendered to Mr. Bailey on November 18, 2016, in the total amount of $2,785.16. The sole explanation for the submission of what plaintiff characterized as “amended bills” was a sworn statement by plaintiff’s medical billing supervisor that she “was made aware that the defendant was addressing bills with the incorrect amount and requesting verification for services that were mistakenly added to the bill.”

“Plaintiff has not raised an issue of fact precluding summary judgment dismissing the complaint on the ground that the action is premature. Whereas this action was commenced to recover the principal sum of $3,268.16 (the amount sought in the November bills), plaintiff has now elected not to pursue payment for the $483 electromyography services that were the subject of the outstanding verification requests, but it cannot retroactively create an obligation for defendant to have paid or denied the remaining claims totaling $2,785.16, thereby providing a basis for this action (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]; Westchester Med. Ctr. v A Cent. Ins. Co., 42 Misc 3d 146[A], 2014 NY Slip Op [*3]50347[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). Under the circumstances presented, the submission of the March 2017 bills did not create a new obligation for defendant to pay or deny plaintiff’s duplicate claims for the remaining services, totaling $2,785.16, within 30 days, nor did it give defendant a new opportunity to request additional verification with respect to those service”

The lesson here – an issue not seen since 2014 – is that the provider does not get a do over and cannot seek any redress from regenerated billings.

80% of 200% of Medicare Part B


If a fee schedule says that you are only liable for 80% of 200% of a fee and the billed amount is less than 80% of 200% of the fee, what can you do?

The Florida court said In Muransky, we held that “under the PIP statute, if the billed amounts are less than 80% of the fee schedule, the insurer may pay the billed amounts in full or pay the 80% reimbursement rate of maximum charges.”

In Muansky, the carrier paid 80% of the billed amount and got burned. Here, the Court remanded for findings as to the proper fee schedule. Play with this on certain bills and ground rules… It is messy 🙂

Reasonableness of charges (Fla)


When trying a boardable medical case, a really thorny issue becomes what is the value of the services billed. NY generally does not get into that issue because no-fault has a fee schedule, thereby obviating the issue on the first-party case. But how about on the third-party case where the patient solely treats on a lien? Yes, this is rare in NY save some surgery cases. But here is something of relevance, at least to me:

“Dr. Dauer attested that he has personal knowledge and expertise regarding the range and rate of charges for medical care in the relevant community, including the range and rate of charges for radiological services
provided in the area to patients by credentialed and experienced diagnostic centers and hospitals. Dr. Dauer considered the reimbursement levels an charges in the community, his own charges in the community, various federal and state medical fee schedules applicable to motor vehicles and other
insurance coverages including worker’s compensation, Medicare, HMO/PPO, and other third-party insurance carriers, and the payments and reimbursements that M & E accepts from all sources. Dr. Dauer attested to conducting numerous peer reviews and obtaining extensive personal knowledge and professional expertise regarding medical care and medical charges and medical reimbursements in the Miami-Dade and Broward
communities. Dr. Dauer opined, after reviewing the medical records for care provided to the insured, Omar Pinelo, by M & E in connection with the accident, that the contested charges were not reasonable…”

Reasonable excuse/ default

Cautious Care Med., P.C. v 21st Century Ins. Co., 2021 NY Slip Op 50785(U)(App. Term 2d Dept. 2021)

“In support of its motion, defendant submitted an affidavit by the person alleged to have received service of process, who stated that she always follows defendant’s practices and [*2]procedures for receipt of process. These practices and procedures would have created a record of the instant lawsuit, and defendant demonstrated that it does not have any such record. Defendant’s affiant further explained, in detail, that the records she created on July 8, 2015, the date service herein was allegedly made, as part of defendant’s practices and procedures, demonstrate that she received process in 14 other cases on that date. Under these circumstances, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant had established a reasonable excuse for its default.”

Interesting discussion on CPLR 301

Velasqeuz v. Hernandez, Index #: 31482/2019E (Sup. Bx. Co. 2001)

My case. CPLR 301 – hahahahhahahah. Gotcha.

Bronx jury or Connecticut jury?

Intercompany arbitration is inappropriate in New Jersey between a PIP carrier and a major medical insurance carrier


One of the interesting aspects or evolution of New Jersey PIP law is that is has devolved from a comprehensive all encompassing benefit to one that is either limited or non-existent. The historians will remember that until the 1990 Fair Automobile Insurance Reform Act, there was not coverage limit. That changed to $250,000 in 1990 along with the ability to have major medical be deemed primary.. In 1998, AICRA brought the common $15,000 PIP policies and mandated arbitration.

The question that lurked is what happened when major medical said go to PIP, PIP as secondary pays and then seeks to subrogate against the major medical carrier.

The Appellate Division said you’re out of luck.

(1) “When a PIP-as-secondary insurer receives a claim eligible for primary coverage, it must deny coverage and send the insured a notice advising them to submit the claim to their health insurer”

(2) ” Health insurers are also required to make prompt payment of claims, but are governed by N.J.A.C. 11:22-1.1 to -1.16″

(3) “Reimbursements of payments incorrectly made by auto carriers are permitted by inter-company agreement or arbitration amongst PIP insurers, N.J.S.A. 39:6A-11, but this court has determined that health insurers are not subject to PIP arbitration”

(4) “A health insurer’s duty to process a claim, however, does not arise until it has received a request for payment directly from the insured or a healthcare provider. N.J.A.C. 11:22-1.5(a); Bull. No. 05-25. If, after proper submission, a health insurer disputes coverage of a requested medical expense, the insured must pursue the internal appeals
process under the plan.”

(5) “Where both the PIP and health insurer dispute coverage, the health insurer becomes obligated to act as the
primary. N.J.A.C. 11:3-37.11(a)”

(6) This is the most important part of the opinion ” If plaintiff believed that defendant unreasonably denied coverage, it could have requested that P.M. pursue defendant’s internal appeals process, or obtained an assignment of rights from the insured and pursued the appeal itself. Instead, it simply paid the claim. Consequently, plaintiff has failed to establish any right of subrogation

(7) When PIP pays, they forfeit their recovery right.

This is interesting, right?

Is a PIP IME hearsay?

I specifically remember that Mr. Barhshay and myself battled this issue in a different time in all of our lives. Primary Psychiatric Health, P.C. v. State Farm Mut. Auto Ins. Co., 15 Misc. 3d 1111(A)(Civ. Ct. Kings Co. 2007). In Primary, the carrier conducted IMES wherein the experts found that the injuries were not related to the accidents. The Court found that the records and the interviews were not “hearsay”, and relied upon then Appellate Term, First Department precedent that held the provider cannot challenge the medical records that reference the Assgignors’ condition.

We would later learn from the Appellate Term, Second Department, the the medical records and the IME iterview are admissible, not for the truth of the matter asserted, but under the assumption that the exist and the opinion based upon these records is whatever it is.

As I have discussed before, Florida abolished for all practical purposes their Appellate Divisions (their versions of our Appellate Term). Florida’s Appellate Divisions wrote opinions similar to pre 2003 NY App Term deicsions – found in the Florida Law Weekly when they were located. The net result is that Fla has been the wild west of No-fault since the early 2000s when their NF revolution began, similar to New York’s.

As of thus year, all cases go the DCA, which for better or worse, means the law is being settled very quickly. And similar to post 2013 NY, the law has been decidedly more pro-insurance carrier.

This is one from Miami-Dade on IME hearsay.

United Automobile Insurance Company NB Sports Massage and Rehab Corp., a/a/o Daisy DePaula, No. 3D21-0107 (Fla 3d DCA 2021)

(1) ” NB Sports initially objected to the introduction of Dr. Weinreb’s deposition testimony because his recollection was not refreshed after seeing the IME report. See Ehrhardt, supra, at § 613.1 (“[I]f the witness does not have a present memory of the fact after seeing the document, the witness may not testify to the fact.”). It is undisputed that Dr. Weinreb’s memory was not refreshed. However, testimony regarding the IME report may be admissible on another independent ground, specifically, the past recollection recorded hearsay exception. See Garrett v. Morris Kirschman & Co., Inc., 336 So. 2d 566, 569 (Fla. 1976) (“A writing may serve to jog a witness’ memory and also be admissible on some independent ground.”).

(2) “Section 90.803(5) sets forth the requirements for the past recollection recorded hearsay exception:…”

(3) “These requirements are usually established through the testimony of the witness who made the prior record. See Polite v. State, 116 So. 3d 270, 275 (Fla. 2013); see also Ehrhardt, supra, at § 803.5. Here, however, the lower court never permitted Dr. Weinreb to testify. We hold that this was error. United should have been allowed to lay a proper foundation pursuant to section 90.803(5).5 As such, we reverse and remand for further proceedings.”

(4) ” To the extent the IME report contains double hearsay, United should have been allowed to lay a proper foundation under other exceptions to the hearsay rule”

The issue here was that the County Court did not want to allow the IME doctor to testify off a document that did not refresh his recollection. That leaves us with past recollection recorded. Florida tends to follow the federal rules on professional reliability, whereas NY follows Hambsch and Wagman. Thus, the hearsay objection will be overruled.

Appellate Term fiction

Colin Clarke, M.D., P.C. v MVAIC, 2021 NY Slip Op 50729(U)(App. Term 2d Dept 2021)

(1) “The complaint alleges that the claims arose out of six separate accidents which occurred on six different dates.”

(2) “A review of the denial of claim forms, explanations of review and correspondence pertaining to the claims at issue reflects that the facts relating to each claim are likely to raise few, if any, common issues of fact”

(see Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). Indeed, under the facts of this case, an extraordinary number of defense witnesses would be required at a single trial of all six claims. As a result, defendant’s motion to sever the causes of action should have been granted (see Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536; Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).”

Sentence number one comes from Mount Sinai and ends the inquiry. Sentence number two is a make believe addition that the new law clerks at the Appellate Term added to the severance inquiry. The reality is who wants to take up to the App. Div whether sentence (2) is a correct statement of law?

I for one do not think the App. Div. will grant leave to answer that esoteric question. But they really should because the no-fault rule, outside the third department, is no multi-suits unless it is the same accident or plaintiff pleads or can show common elements, i.e, same FS reduction, same coverage defense (probably provider based).

I just think the Court is wrong in their thinking on this issue.