You know DFS does NOT approve of this disclaimer

Hereford Ins. Co. v Forest Hills Med., P.C., 2019 NY Slip Op 03926 (1st Dept. 2019)

” Moreover, movant defendants failed to demonstrate a meritorious defense. The failure by the occupants of the vehicle to subscribe and return the transcripts of their examinations under oath violated a condition precedent to coverage and warranted denial of the claims (see Hertz Vehs., LLC v Gejo, LLC, 161 AD3d 549[1st Dept 2018]). “

I really find this basis to disclaim coverage disingenuous. The EIP came to the EUO, told his or her story, lied or did not lie. We go from there. I cannot fathom how the failure to return an EUO transcript – which is a sworn to document and which may be used against the deponent or the assignee as a matter of course – warrants the loss of no-fault benefits.

I am quite sure that DFS did not put the “and subscribe the same” (11 NYCRR 65-1.1[b]) language in the regulations to authorize the voiding of coverage due to the failure to sign the transcript. I also suspect this case will spur either an emergency amendment from DFS or an opinion letter. Thankfully, this appeared in the context of a motion to vacate a default, which means the Court of Appeals will not touch this matter, i.e., the failure to establish a reasonable excuse is reviewed under an abuse of discretion standard that will not be upset on appeal.

I think this basis for a disclaimer is the colloquial playing with fire.

App Term EUO cases (ad nauseam)

LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co., 2019 NY Slip Op 50696(U)(App. Term 2d Dept. 2019)

” 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….”

Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 50700(U)(App. Term 2d Dept. 2019)

“Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment”

K.O. Med., P.C. v IDS Prop. Cas. Ins. Co., 2019 NY Slip Op 50687(U)(App. Term 2d Dept. 2019)

“Plaintiff correctly argues that the initial EUO scheduling letter sent to plaintiff had been sent more than 30 days after defendant had received the claims seeking $348.80, $204.41, $148.69, and $91.42. As a result, the request was a nullity as to those claims”

BC Chiropractic, P.C. v Farmers New Century Ins. Co.,2019 NY Slip Op 50680(U)(App. Term 2d Dept. 2019)

” While the Civil Court correctly noted that defendant’s January 13, 2012 letter was a delay letter, which did not toll defendant’s time to pay or deny the claim, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. [*2]Co., 35 AD3d 720 [2006]); and that the claim had been timely denied on that ground”

The common refrain here is that the objective basis for the EUO is not part of the an insurance carrier’s prima facie case.

Happy Mother’s Day

I am beginning to publish some articles here today, but I wanted to take a moment to wish all of the mothers out there a happy Mothers Day. Without the support and love of our mothers, much of the good that we see in society would not exist. Many moms have made sacrifices for their children and this blogger – who avoids issues outside the law- is not blind to that fact. A simple reminder on here is in order.

Move quickly or do not move at all

Cashbamba v 1056 Bedford LLC, 2019 NY Slip Op 03456 (1st Dept. 2019)

(1)”Defendants failed to comply with the requirement of 22 NYCRR 202.7 to submit an affirmation of good faith in support of their disclosure-related motion. Contrary to their contention, their counsel’s affirmations are insufficient, because they do not include the time, place, and nature of the consultations that counsel had with plaintiff’s counsel to try to resolve the issues raised by the motion (22 NYCRR 202.7[c]; see 241 Fifth Ave. Hotel, LLC v GSY Corp., 110 AD3d 470, 471-472 [1st Dept 2013]; see also Loeb v Assara N.Y. I, L.P., 118 AD3d 457, 457-458 [1st Dept 2014]). To the extent defendants rely on letters exchanged between their counsel and plaintiff’s counsel, the letters are insufficient, because they relate to only one of the items sought by defendants and do not reference any discussions between counsel. Moreover, the record does not support defendants’ contention that the parties have historically been unable to resolve discovery disputes without court intervention.”

(2) “Furthermore, defendants failed to provide an adequate explanation for their delay in seeking to compel the examination after plaintiff failed to appear. They also failed to explain why they did not move to reargue and/or appeal the court’s decision of June 15, 2017, wherein it denied defendants’ motion to vacate the note of issue. In its decision, the court stated that the motion was denied as moot as “[a]ll discovery sought in the motion has now been provided.” Instead, defendants waited until August 27, 2018, to move to strike the complaint or to preclude plaintiff from providing evidence of his neurological injuries or for an order compelling plaintiff to appear for an independent neurological examination and to provide authorizations.”

The lesson here is once that Note of Issue is thrown down, you need to act expeditiously, whether to reargue or to appeal. Defendant fell asleep here and got severely punished.

Causation: not enough to state pre-existing

Barnes v Occhino, 2019 NY Slip Op 03159 (4th Dept. 2019)

(1) ” That report contains a review of plaintiff’s imaging studies, which showed disc herniations, and plaintiff’s medical records, which noted that plaintiff had significant limited range of motion as well as muscle spasms, thus raising a triable issue of fact whether there was objective evidence of an injury “

(2)”Defendants’ submissions in support of their motion also raised a triable issue of fact whether the motor vehicle accident caused plaintiff’s alleged injuries (see Schaubroeck v Moriarty, 162 AD3d 1608, 1609 [4th Dept 2018]). In the affirmed report of the same physician, he opined that the imaging studies showed only preexisting degenerative changes, but he ” fail[ed] to account for evidence that plaintiff had no complaints of pain prior to the accident’ ” (Crane, 151 AD3d at 1842; see Thomas v Huh, 115 AD3d 1225, 1226 [4th Dept 2014]). “

This is really interesting. A physician who reviews a study and says it is all degenerative will not eliminate all issues of fact where the report fails to account for evidence of a lack of pain prior to the incident.

Another arbitration only rule bites the dust

Matter of Global Liberty Ins. Co. v Medco Tech, Inc., 2019 NY Slip Op 02167 (1st Dept 2019)

” Respondent seeks from petitioner no-fault insurance benefits for medical equipment that respondent provided to its assignor, who was involved in a motor vehicle accident. In denying respondent’s claim, petitioner relied on a peer review report that concluded, based on a review of the medical records, that the assignor’s condition was degenerative in nature and not post-traumatic and therefore that the surgery undergone by the assignor was “not medically necessary in relation to the accident” (emphasis supplied). The arbitral award must be vacated and a de novo hearing held, because, on the record before us, as argued, it would be irrational to conclude that the need for the subject medical equipment was causally related to the accident (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [2d Dept 1999]; Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc 3d 135[A], 2013 NY Slip Op 50589[U] [App Term, 1st Dept 2013]). “

I always ask myself what is it that causes me to appeal certain cases. Sometimes, it is pure curiosity, sometimes it is because the lower arbitrator did such a horrible job that I cannot see record support for the award and other times it is because the lower fact finder created a legal precedent that is completely without legal support. You can figure that my level of success in categories number one and two are minimal. Category two represents the cases that are most personal to me (e.g., Miller v Elrac) and are heart-breakers because AAA just got the cases wrong. As to category three, I have gotten some bites, as can be seen here.

The issue in this case represented the perfect storm. Arbitrator Resko was not able to make a factual determination based upon the master arbitrator rule stating that post-surgical DME peer reviews and IMEs must make reference to the DME in order to be valid. That was not done here. An award was entered in favor of the Applicant. The master arbitrator gave it the Petrofsky “seal of approval” and I bounced into Supreme Court. FYI – the master arbitration program is a disgrace, but I can discuss that off-line.

My issue had nothing to do with this applicant, law firm or my dislike towards CPM and some of the abuses I see with extremity surgery billing. Some people think these appeals are personal, but this was not. It was based upon a rule of law that I found not well reasoned and I will say was “stupid”. I was hesitant about appealing this, but I went to an arbitration, saw a certain law firm with many surgery cases “cite” to voluminous master awards involving this issue and I said to myself that I should pull the trigger. The beneficiary of this rule will probably be Geico and Allstate given their presence in the market. But, I never want to see this rule applied in any of my cases. I got my wish.

If you look at the oral arguments, my main point is that that the medical necessity or causal relationship should not be barred due to a made up rule that runs counter to established precedent. I told one of the judges I do not even care if I win or lose at the end, just apply a rational precedent. The Court agreed. My bill for this case? Satisfaction that reason prevailed.

Aggravation of a pre-existing injury

Ortiz v Boamah, 2019 NY Slip Op 01129 (1st Dept. 2019)

I am always interested in how issues of causation play out in the statutory no-fault world

(1) Prima facie: pre-existing injury. ” Defendants submitted plaintiff’s medical records and the affirmed report of an orthopedist who, following examination and review of the medical records, found that plaintiff had preexisting conditions and no evidence of injuries caused by trauma  “

(2) “An explanation that the plaintiff was previously asymptomatic and the accident aggravated an underlying pre-existing condition, rendering the plaintiff symptomatic, is sufficient to raise an issue of fact as to causation (id. at 486 [“To the extent plaintiff’s physicians asserted that plaintiff Pham had degenerative joint disease which was common for her age, that she was previously asymptomatic, that the accident aggravated her underlying degenerative joint disease, and that trauma increases the rate of disc desiccation, rendering her now symptomatic, this was sufficient to raise an issue of fact as to causation”] [internal quotations marks omitted] “

(3) ” Plaintiff submitted the reports of both her treating neurosurgeon and treating chiropractor, each of whom independently opined that because she had no history of symptoms or medical treatment for her spine before the accident, her injuries were caused, or at least aggravated by the motor vehicle accident. Plaintiff’s neurosurgeon noted that although plaintiff has chronic degenerative spinal stenosis and spondylolisthesis, she had no prior history of back pain and leg pain. He opined that “[i]t is not unusual for such a chronic pathology to become aggravated by a relatively mild-to-moderate trauma.” He further opined, within a reasonable degree of medical certainty, that the motor vehicle accident aggravated plaintiff’s latent asymptomatic age related degenerative spine conditions and was the cause of her symptoms. Plaintiff’s chiropractor also opined that because plaintiff did not seek medical treatment for her preexisting back conditions prior to the accident, the accident had activated, accelerated, or aggravated those conditions as well as causing additional damage. This is sufficient to raise an issue as to causation”

Trip and fall to zero

Rambarran v New York City Tr. Auth., 2019 NY Slip Op 00484 (2d Dept. 2019)

“Here, the plaintiff’s evidence at trial included her own testimony, the testimony of her expert engineer, as well as photographs identified and marked by the plaintiff showing the alleged defect as it existed at the time of the subject accident. Accepting such evidence as true, and affording the plaintiff every favorable inference that may be properly drawn from the facts presented (see Szczerbiak v Pilat, 90 NY2d 553, 556), the alleged defect was not actionable. Considering the appearance and dimensions of the protruding bolt, as well as its location on the sidewall of the staircase, directly underneath a handrail and away from the walking surface of the stairway

This was an interesting case as it involved a trip and fall and a $650,000 jury verdict. The Second Department almost seems to intimate that the plaintiff sought out this defect and non-suited this case.

“Out of scope, out of mind”

Daniele v Pain Mgt. Ctr. of Long Is., 2019 NY Slip Op 00093 (2d Dept. 2019)

” The Supreme Court also should not have allowed the plaintiff’s experts, Jason Brajer and Paul Edelson, to testify as expert witnesses in emergency medicine. “[W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Mustello v Berg, 44 AD3d 1018, 1019; see Behar v Coren, 21 AD3d 1045, 1046-1047). Whether a particular witness is qualified to testify as an expert is ordinarily a discretionary determination (see de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 517), which will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion (see id. at 517-518). Brajer was board-certified in anesthesiology and pain management. He did not testify that he had training in emergency medicine, and did not adequately explain how he was familiar with the standard of care in emergency medicine based upon his prior experience of being called to the emergency room to prepare patients for surgery, or evaluating urgent back pain (see Galluccio v Grossman, 161 AD3d 1049, 1052; cf. Ocasio-Gary v Lawrence Hosp., 69 AD3d 403, 405). Edelson, a pediatrician, had minimal experience in emergency medicine. More importantly, that experience, which consisted of moonlighting at a hospital for five hours per week in the late 1970s and early 1980s, was simply too remote in time to qualify him to testify as an expert in emergency medicine as of September 2010, the time of the treatment at issue in this case. Edelson otherwise failed to demonstrate that he possessed the specialized knowledge, training, or education that would have qualified him as an expert in this area “

Use and Operation

Matter of GEICO Ins. Co. v Rice, 2018 NY Slip Op 08651 (2d Dept. 2018)


“Upon approaching the vehicle, Rice placed his hand into a partially opened window to unlock the door, at which point the vehicle moved forward and dragged Rice along the roadway.”

“The term “occupying” was defined in the policy as “in, upon, entering into, or exiting from a motor vehicle.” This policy language was not ambiguous, and GEICO was entitled to enforce the provision to disclaim coverage (see Matter of Government Empls. Ins. Co. v Avelar, 108 AD3d 672Matter of USAA Cas. Ins. Co. v Cook, 84 AD3d 825, 826; Matter of USAA Cas. Ins. Co. v Hughes, 35 AD3d 486, 487-488; see generally Baughman v Merchants Mut. Ins. Co., 87 NY2d 589, 592; Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864-865). Here, GEICO made a prima facie showing that Rice was “occupying” his own vehicle and not the vehicle insured by GEICO under his mother’s policy”

Use, operation and occupation.  Always poses interesting questions.