Serious injury: PL 10.00(10) v. Ins Law 5102(d)

People v Garland, 2018 NY Slip Op 07927 (2018)

This is more esoteric but an interesting read.  Factually, Defendant shot the victim and a bullet remained in the victim’s leg.  The People returned a first-degree assault indictment (among other lesser crimes), requiring proof of “serious injury”.  The jury found that the injuries were “serious” and the Defendant was convicted on the top count of the indictment, first-degree assault.  The Appellate Division affirmed and the Court of Appeals affirmed, with two dissents.   The dissent is interesting:

“[O]ne instructive comparison is to our decisions in “no-fault” automobile insurance cases. We regularly reject the sort of evidence of injury the victim here suffered as sufficient to support a jury verdict for the plaintiff; often we deem it insufficient to create a triable issue of fact as to whether an injury was serious (see e.g. Lopez v Senatore, 65 NY2d 1017 [1985], Gaddy v Eyler, 79 NY2d 955 [1992], Scheer v Koubek, 70 NY2d 678 [1987]). The insurance law’s definition of “serious injury” is quite similar to the definition of “serious physical injury” in the Penal Law § 10.10(12). The plaintiffs in those cases, of course, have a much lower burden of proof than do the People here, who must prove the seriousness of the physical injury beyond a reasonable doubt. Nevertheless, disregarding the kind of analysis we regularly employ in those cases, the majority concludes that the victim’s “slight pain” and “little problems” are legally sufficient to establish “serious physical injury.”

The requirements set out in Stewart are similar to our approach in the no-fault context, where we have said that “subjective complaints alone are not sufficient” to establish serious injury, and that claims must be supported by “objective evidence” (Toure v Avis Rent a Car Sys., 98 NY2d 345, 351 [2002]). Of course, the crucial difference between that regime and the elements required in assault statutes is that no-fault cases are civil, and criminal prosecutions require a much higher standard of evidentiary proof than civil suits. The majority’s opinion rests on less, based on assertions that are trivial or wholly speculative. We would not, in a no-fault or malpractice case, accept evidence about a plaintiff’s injury from a doctor who had never examined a patient and whose most recent review of medical records was four years distant.

Someone who shoots into a crowd and strikes an innocent teenager deserves to be harshly punished. But the Legislature, not the courts, have the responsibility to enact statutes criminalizing behavior and prescribing ranges of punishments. The Legislature has determined that the degree of actual injury to the victim is a crucial determinant of the amount of punishment to be meted out — even if the insubstantiality of the injury is the result of pure dumb luck. The Legislature has dealt with the use of a firearm to cause an injury separately, which is why second-degree assault can be established either by causing serious physical injury, or by causing physical injury by use of a deadly weapon. The Legislature has also attached a separate, substantial penalty (up to 15 years of imprisonment) to possession of a handgun, of which Mr. Garland was convicted. Those are legislative enactments to which we should adhere. Mr. Garland’s maximum sentence for second-degree assault is seven years; for first-degree assault, it is 25. By treating what is plainly not a serious physical injury as if it were, we are shredding the statutory scheme adopted by the Legislature and imposing one of our own making. I would vacate his first-degree assault convictions (leaving intact his conviction for Criminal Possession of a Weapon in the Second Degree) and remit the case for further proceedings.”

Objective reasons not necessary to prove an EUO no-show defense

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. v GEICO Ins. Co., 2018 NY Slip Op 51653(U)(App. Term 2d Dept. 2018)

“Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d, 11th & 13th Jud Dists 2018]).”

One need to forget this lesson.  That said, a proper and timely objection changes the calculus.

LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2018 NY Slip Op 51655(U)(App. Term 2d Dept. 2018)

Furthermore, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]”

The marathon runner

Heywood v New York City Tr. Auth, 2018 NY Slip Op 06318 (1st Dept. 2018)

“Plaintiff’s own deposition testimony showed that she had resumed running within months after the accident and completed a marathon years later, indicating an absence of any significant or permanent injury to her ankles or knees ”

(1) the running after the accident knocked out the “signification limitation”; and

(2) the marathon years later knocked out the “permanent consequential” injury

The Court later said that the full range of motion knocked out the case.  This case goes to show how ADL’s (even if there was diminished ROM) could cause a staturoty threshold case to sail away into the sunset.

Texting your friend who kills someone: Are you liable?

Vega v Crane, 2018 NY Slip Op 03262 (4th Dept, 2018)

(1) “There is, however, a significant distinction between the distracting passenger and the remote sender of text messages. Unlike the passenger, the remote sender is not present in the vehicle and thus “lacks the first-hand knowledge of the circumstances attendant to the driver’s operation of the vehicle that a passenger possesses and has even less ability to control the actions of the driver” (Kubert v Best, 432 NJ Super 495, 521, 75 A3d 1214, 1230 [Super Ct, App Div 2013] [Espinosa, J., concurring]). The driver cannot prevent the passenger, who is actually present inside the vehicle, from creating a distraction by suddenly and unnecessarily calling out at an imprudent moment. The same driver, on the other hand, has complete control over whether to allow the conduct of the remote sender to create a distraction. Although the remote sender has the ability to refrain from sending the driver a text message, he or she is powerless to compel the driver to read such a text message at an imprudent moment, and has no duty to prevent the driver from doing so.”

(2) “If a person were to be held liable for communicating a text message to another person whom he or she knows or reasonably should know is operating a vehicle, such a holding could logically be expanded to encompass all manner of heretofore innocuous activities. A billboard, a sign outside a church, or a child’s lemonade stand could all become a potential source of liability in a negligence action. Each of the foregoing examples is a communication directed specifically at passing motorists and intended to divert their attention from the highway.”

(3) “We conclude that defendant owed no duty to plaintiff to refrain from the conduct alleged, and therefore that she cannot be held liable for such conduct. Accordingly, we conclude that the order should be affirmed.”

I think this is a really interesting issue.  What if you give a gun to someone who you know will shoot it?  Are you liable for negligent entrustment?  If you serve alcohol to a minor and they get into an accident, you’re liable.  Yes, there is no statute or common law principle here, and the negligent entrustment analogy is a bit outside the bounds of this discussion.  But I do not see this debate ending here in 4th Department precedent.

What is this about?

Matter of Allstate Ins. Co. v Travelers Cos., Inc., 2018 NY Slip Op 02163 (1st Dept. 2018)

“Here, the arbitrators’ determination that Travelers was entitled to recoup the entire payment made to its insured pursuant to basic economic loss and optional basic economic loss coverage was not arbitrary and capricious. Rather, it was rationally based on the relevant statutes and regulations (see Insurance Law § 5102[a], [b]; 11 NYCRR 65-1.1, 65-1.2).”


I wish everyone who reads this blog a Happy, Healthy and prosperous New Year.  I promise some interesting appeals from me will find their way at the First and Second Departments in 2018.  We have avoided the Third and Fourth Departments lol.

There is a doozy that will be decided at the NJ Appellate Division later in 2018 involving constitutional issues which I supposed I invited.   We look forward to a good year and hopefully good health and cheer to everybody.

Fee schedule defense: Court separates 97811, 97813, 97814 from remainder of case

Z. M. S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co., 2017 NY Slip Op 51891(U)(App. Term 2d Dept. 2017)

(1) ” Defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814.”

(2) “Defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Since the services here were rendered after April 1, 2013, the defense that the amounts sought to be recovered exceed the amount permitted by the workers’ compensation fee schedule is not subject to preclusion (see 11 NYCRR 65-3.8 [g] [eff [*2]Apr. 1, 2013]; Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85 [App Term, 1st Dept 2015]).”


Jacobus v Trump, 2017 NY Slip Op 08625 (1st Dept. 2017)

“The challenged statements made orally and by Twitter by defendants were nonactionable (see Silsdorf v Levine , 59 NY2d 8 [1983], cert denied 464 US 831 [1983]).

Whether alleged statements are susceptible of a defamatory meaning imputed to them is, in the first instance, a question of law for the courts to decide (see Aronson v Wiersma , 65 NY2d 592, 593 [1985]; Silsdorf , 52 NY2d at 13). The alleged defamatory statements are too vague, subjective, and lacking in precise meaning (i.e., unable to be proven true or false) to be actionable. The immediate context in which the statements were made would signal to the reasonable reader or listener that they were opinion and not fact (see generally Gross v New York Times Co. , 82 NY2d 146 [1993]).”

Those liberal First Department Justices gave Trump a pass.  Who could’ve though (sarcasm intended)

Did his veteran status influence this decision?

People v Rogers, 2017 NY Slip Op 07889 (3d Dept, 2017)

(1) Defendant, an army veteran, admitted to unlawfully entering a residence and taking a bottle of wine, claiming that he heard a voice telling him to do so. Following his arrest, he waived indictment and agreed to be prosecuted by a superior court information charging him with attempted burglary in the third degree. He pleaded guilty to this crime and waived his right to appeal, both orally and in writing. Under the terms of the plea agreement, he was to be sentenced to 1⅓ to 4 years in prison; however, if he successfully completed the alternative treatment

(2)  Significantly, defendant acknowledged during the plea colloquy that he had mental health problems, including posttraumatic stress disorder that caused him to experience hallucinations, that he heard a voice telling him to commit the crime at issue and that he was taking multiple medications, including Zoloft, to address his mental health problems. Although County Court observed that defendant appeared coherent and responsive during the plea proceedings, it did not ascertain if he was aware that a possible defense, emanating from his mental state at the time that he committed the crime, was available and that he was waiving it by pleading guilty. Inasmuch as an essential element of attempted burglary in the third degree is the intent to commit a crime inside a building that one has unlawfully entered (see Penal Law § 140.20), and defendant’s mental state potentially negated such intent, County Court should have conducted a further inquiry before accepting defendant’s guilty plea (see People v Mox, 20 NY3d 936, 938-939 [2012]; People v Green, 141 AD3d at 838-839; People v Wolcott, 27 AD3d 774, 775-776 [2006]). Accordingly, under the circumstances presented, we find that the guilty plea was not knowing, voluntary and intelligent and must be vacated. In view of our disposition, we need not address defendant’s remaining claim.

** I post this because judges are humans and sometimes they make blatant value judgments.  Take away the veteran status, and the felon conviction is affirmed.  I am not saying this is wrong, but it does not get more blatant than this.  I would have voted with the majority, if that means anything.

Repriced CPT Code 64550

Compas Med., P.C. v 21st Century Ins. Co., 2017 NY Slip Op 51228(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s further argument, defendant’s proof was sufficient to demonstrate, prima facie, that defendant had fully paid for the services charged under code 64550 of the workers’ compensation fee schedule”

I am sure the carrier repriced 64550 to 97014.  The Court held, with an affidavit, the repricing was proper.