Suboptimal effort?

Morales v Cabral, 2019 NY Slip Op 08516 (1st Dept. 2019)

” Defendant Morales established prima facie that plaintiff did not sustain a serious injury to her cervical spine, lumbar spine or left shoulder in the June 2014 automobile accident through the reports of physicians who examined plaintiff and found no indications of limitations in use of the subject body parts. Although one examiner measured limitations in motion, she opined that these were subjective and unrelated to any objective evidence of injury (see Macdelinne F. v Jimenez, 126 AD3d 549, 551 [1st Dept 2015]). Morales also submitted radiologists’ reports finding either no injury or preexisting conditions and an emergency room medical expert’s finding that plaintiff’s post-accident complaints and treatment were inconsistent with her claims (see De La Rosa v Okwan, 146 AD3d 644 [1st Dept 2017], lv denied 29 NY3d 908 [2017]). Morales further relied on records of plaintiff’s primary care physician, which reflect no contemporaneous complaints by plaintiff and show that plaintiff had a normal range of motion a year after the accident (see Perl v Meher, 18 NY3d 208, 217-218 [2011]). The physician’s records also show that plaintiff ceased treating at that time (see Pommells v Perez, 4 NY3d 566, 574 [2005]).”

Sever it

Well, I lost five of these recently I think. I stopped keeping track. What you may not know is that I sought leave to appeal to the Second Department of the last three cases. Leave was denied. But, I think a phone call was made to someone.

Case #1:

Westchester Radiology & Imaging, P.C. v GEICO Cas. Co., 2019 NY Slip Op 51703(U)(App. Term 2d Dept. 2019)

“The complaint alleges that the claims arose out of six separate accidents which occurred on six different dates and the denial of claim forms indicate that the claims at issue were denied on the ground of lack of medical necessity, an issue which is inherently distinct to each assignor. Therefore, there are likely to be few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the causes of action should have been granted (see 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 [*2]2012]). “

In this instance, same MVA is not even relevant. The claims at issue were denied on the ground of lack of medical necessity, an issue which is inherently distinct to each assignor.”

Case #2:

Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co., 2019 NY Slip Op 51704(U)(App. Term 2d Dept. 2019)

” The complaint alleges that the claims arose out of four separate accidents which occurred on four different dates. The facts relating to each claim are therefore likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the causes of action should have been granted (see 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]). “

Here, severance is based on the traditional notion: multiple accidents, therefore, severance is appropriate.

Case #3:

Arcadia Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51707(U)(App. Term 2d Dept. 2019)

“The complaint alleges that the claims arose out of three separate accidents which occurred on three different dates. A review of the answer, denial of claim forms, and explanations of review pertaining to the claims at issue, reflects that facts relating to each claim are likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the first cause of action from the remaining causes of action should have been granted (see 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]). “

The answer, denials and EOBs show that few common issues of fact will exist. Severance granted.

Case #4:

Clarke v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51708(U)(App. Term 2d Dept. 2019)

“The complaint alleges that the claims arose out of two separate accidents which occurred on two different dates. A review of the answer, denial of claim forms, and explanations of review 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 Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the first cause of action from the remaining cause of action should have been granted (see 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]).

Two accidents, two Assignors, two different proofs. Severance is appropriate.

When is a notice of trial is filed?

Metro Psychological Servs., P.C. v American Tr. Ins. Co., 2019 NY Slip Op 51614(U)(App. Term 2d Dept. 2019)

“Contrary to plaintiff’s contention, defendant’s motion for summary judgment dismissing the complaint was not untimely under CPLR 3212 (a). CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc [*2]3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and when a motion is served upon a party’s attorney by mail, service is complete upon mailing”

The 120-day clock runs when the motion served. Correction – I shall correct this: the clock “stops” when the motion is served. But while I am correcting this, I believe we are probably one of the last states that has not moved to e-filing in all courts. It is really embarrassing that Civil Court and some Supreme Courts are still paper courts. Go to Florida, NJ, CA, NV, MA (to name a few) and you will see that paper filing has been abandoned, like leaded gas and the blackberry. Why are we so behind in New York? Hello OCA? Are you reading? It is almost 2020 – how come every court is not an e-file court?

The PHL right to sue for bad faith?

Haar v. Nationwide Mut. Fire Ins. Co., 918 F.3d 231, 235 (2d Cir. 2019)

“For the reasons stated, the Court hereby certifies the following question to the New York Court of Appeals:

1. Does New York Public Health Law Section 230(11)(b) create a private right of action for bad faith and malicious reporting to the Office of Professional Medical Conduct?

We invite the Court of Appeals [**9]  to reformulate this question as it sees fit or expand it to address any other issues of New York law that would assist this Court in determining whether Haar may assert a cause of action under Section 230(11)(b) against Nationwide.

It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of the New York Court of Appeals this opinion as our certificate, together with a complete set of briefs, appendices, and the record filed in this case by the parties. The parties shall bear equally any fees and costs that may be imposed by the New York Court of Appeals in connection with this certification. This panel retains jurisdiction for purposes of resolving this appeal once the New York Court of Appeals has responded to our certification.”

This decision from the Second Circuit, on this diversity case in March 2019, is interesting as it relates to the within issue. I honestly was unaware that a medical provider had a right to sue for bad faith reporting under the PHL. Apparently, there is a split in the Departments and now the Court of Appeals has agreed to hear the case.

We shall see what happens.

Bifurcation?

Castro v Malia Realty, LLC, 2019 NY Slip Op 06466 (2d Dept. 2019)

(1) “For decades, trial courts in the Second Judicial Department have, as a general rule, conducted trials in personal injury actions in a bifurcated manner, with the issue of liability tried before the issue of damages. In 1979, this Court adopted a rule, binding on the trial courts in this Department, requiring that a bifurcated trial be directed unless there were “exceptional circumstances” and “good cause” for holding a single, unified trial on the issues of liability and damages (22 NYCRR former 699.14[a]). In 1986, this rule was replaced by a uniform rule applicable to trial courts throughout the state providing that “[j]udges are encouraged to order a bifurcated trial [o]n the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action” (22 NYCRR 202.42[a]) “

(2)  “Nevertheless, while this Court has repeatedly stated that the determination of whether to conduct a bifurcated trial rests within the discretion of the trial court and should not be overturned absent an improvident exercise of discretion (see Wright v New York City Tr. Auth., 142 AD3d 1163Patino v County of Nassau, 124 AD3d at 739; Abrams v Excellent Bus Serv., Inc., 91 AD3d 681, 682), we have also continued to state that “[u]nified trials should only be held where the nature of the injuries has an important bearing on the issue of liability” (Wright v New York City Tr. Auth., 142 AD3d at 1163-1164 [internal quotation marks omitted]; see Parris v New York City Tr. Auth., 140 AD3d 938, 939; Patino v County of Nassau, 124 AD3d at 739; Abrams v Excellent Bus Serv., Inc., 91 AD3d at 682; Galarza v Crown Container Co., Inc., 90 AD3d 703, 703-704; Winderman v Brooklyn/McDonald Ave. Shoprite Assoc., Inc., 85 AD3d 1018, 1019; Gee v New York City Tr. Auth., 135 AD2d 778, 779) “

(3) ” For example, in Johnson v Hudson Riv. Constr. Co., Inc. (13 AD3d 864), the Third Department found that the denial of a motion to bifurcate was not an abuse of discretion under the circumstances of that case, where “if the trial was bifurcated, [the] decedent’s spouse would have to endure two trials and it is likely that two separate juries would need to be empaneled due to the coordination of expert witnesses” (id. at 865). As another example, in Sommer v Pierre (51 AD3d 464), the First Department found that the Supreme Court providently exercised its discretion in denying a motion to bifurcate because under the circumstances of that case, “fairness and convenience weigh[ed] in favor of a unified trial, which [would] serve to prevent a verdict based on undue sympathy for either party” (id. at 465).”

(4) ” There is little doubt but that the Bench and the Bar in the Second Department perceive that our precedent is, in contrast to the approach of the other departments, inflexibly, or nearly inflexibly, in favor of bifurcation. We stress today that the trial courts in the Second Department have the discretion to determine whether a personal injury trial should be unified or bifurcated in accordance with the standard set forth in the statewide rule.”

Where does this leave us? Car accident cases will probably still be bi-furcated. Trip and fall cases where an ambulance comes and statements sprinkle the records regarding how the accident occurred provide a better chance at unification. I would say the catastrophic mature of most 240 cases and the direct nexis between mode of injury and hospitalization will gravitate towards unification.

But I look forward to the trial and appellate orders as they fly through the Courts post this case.

Verification receipt

Right Aid Med. Supply Corp. v Travelers Ins. Co.. 2019 NY Slip Op 51184(U)(App. Term 2d Dept. 2019)


“The witness, a 27-year employee of defendant, testified regarding defendant’s policies and procedures for the receipt of mail, both at the Buffalo office, where certain items were sent, and the Melville office, where the claims at issue were processed.”

Implicit here, similar to the recent State Farm cases, is the ability of a claims representative, through resort to the computer system, to testify regarding the intake and mailing from any office to prove the defense.

Workers Comp

Metro Psychological Servs., P.C. v Travelers Prop. & Cas. Ins. Co., 2019 NY Slip Op 51150(U)(App. Term 2d Dept. 2019)

“Defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). ” ‘Since primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board'”

Jurisdiction defenses need to specific

Masigla v Windhaven Ins. Co., 2019 NY Slip Op 51169(U)(App. Term 2d Dept. 2019)

He wrote the book, but who wrote the answer? I am not quitting my day job anytime soon…

It appears that an innocent error in an answer could produce grave results for the insurance carrier.

“As to defendant’s second argument, there is no need to consider whether defendant’s claimed lack of contacts with New York might raise an issue of personal, rather than subject matter, jurisdiction, since, pursuant to CPLR 3211 (e), an objection to personal jurisdiction is waived unless it is raised in the answer or in a pre-answer motion to dismiss the complaint, whichever comes first (see Hatch v Tu Thi Tran, 170 AD2d 649 [1991]; see also Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). “Absent the pursuit of either course, a defendant’s voluntary participation in litigation in which the point can be raised, in and of itself, constitutes a submission to the jurisdiction of the courts” (Gager v White, 53 NY2d 475, 488 [1981]). Here, defendant first appeared by interposing its answer, in which it raised the affirmative defense that [*2]the summons was not properly served, but was silent on the issue of personal jurisdiction due to a lack of a jurisdictional basis for the service. Thus, it waived all personal jurisdiction defenses other than the actual service of process (see Hatch, 170 AD2d at 649; Osserman v Osserman, 92 AD2d 932 [1983]).”

Personally, I think the Court court have construed that the summons was not properly served as a general personal jurisdiction defense. Not sure I agree with this Court’s holding, but my name is not on the order nor is my name Paul Kenny and my opinion does not really count.

The second basis for the decision is absolutely correct and is a lesson to everyone who tries to play the deemer does not apply to us game.

” Finally, even if, as defendant claims, it is exempt from Insurance Law § 5107, which requires certain insurers to provide no-fault coverage, defendant did not demonstrate that its policy did not provide such coverage, and, therefore, defendant did not demonstrate its entitlement to judgment as a matter of law.”

The reason as many of you coverage geeks know is that many insurance policy contains an out of state deemer provision in the insurance contract. This is separate and apart from Ins. Law 5107. Thus, absent presenting the contract of insurance, the Court properly found denied the motion as all triable issues of fact have not been eliminated.

IME no show

Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co., 2018 NY Slip Op 51601(U) (App. Term 2d Dept. 2018)

I missed this one originally. And this was a big one.

” While plaintiff argues that defendant did not mail its IME scheduling letters to the correct address, defendant demonstrated that copies of the IME scheduling letters had been mailed to the attorney who represented plaintiff’s assignor with respect to the accident in question (see Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 136[A], 2009 NY Slip Op 50294[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). “

Another hiccup to the briefing schedule rule

Golden Star Acupuncture, P.C. v Erie Ins. Co. of NY, 2019 NY Slip Op 50920(U)(App. Term 2d Dept. 2019)

“We note that the Civil Court did not improvidently exercise its discretion in considering the papers submitted by plaintiff in opposition to defendant’s motion, even though the opposition papers had been untimely served pursuant to the parties’ stipulation, as defendant was able to submit reply papers (see Hsu v Shields, 111 AD3d 674 [2013]; Kavakis v Total Care Sys., 209 AD2d 480 [1994]). “