Self imposed ROM limitation

Mahler v Lewis, 2022 NY Slip Op 06123 (2d Dept. 2022)

“One of the defendant’s experts found significant limitations in the range of motion of the cervical and lumbar regions of the injured plaintiff’s spine, and failed to adequately explain and substantiate, with competent medical evidence, his belief that the limitations were self-imposed

What is personal knowledge?

SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50931(U)(App. Term 2d Dept. 2022)

“In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court limited the issues for trial, in effect pursuant to CPLR 3212 (g), to whether plaintiff had failed to appear for the EUOs. The court, citing Metro 8 Med. Equip., Inc. v ELRAC, Inc. (50 Misc 3d 140[A], 2016 NY Slip Op 50174[U] [App Term, 1st Dept 2016]), found that defendant had not made a prima facie showing of plaintiff’s failure to appear for scheduled EUOs due to the amount of time between the scheduled EUOs and the date on which the affirmation was executed by the attorney who was present to conduct such EUOs, and the affiant’s failure to establish the basis for her recollection of plaintiff’s failure to appear.

Contrary to the determination of the Civil Court, the affirmation submitted by the attorney who was to conduct the scheduled EUOs was sufficient to establish that plaintiff had failed to [*2]appear. As the attorney who was to conduct such EUOs, Megan Dimicelli, Esq., stated that she was present at the location of the scheduled EUOs and that she would have conducted the EUOs if plaintiff had appeared, she possessed personal knowledge that plaintiff had failed to appear (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). To the extent the Civil Court stated that an issue existed with respect to DiMicelli’s recollection of plaintiff’s failure to appear, such a determination was not warranted, as, on its face, DiMicelli’s affirmation was not unworthy of belief (see e.g. Joseph-Felix v Hersh, — AD3d —, 2022 NY Slip Op 04905 [2d Dept 2022]; cfMetro 8 Med. Equip., Inc. v ELRAC, Inc., 2016 NY Slip Op 50174[U]). In opposition to defendant’s motion, plaintiff could have demonstrated the existence of a material issue of fact by submitting an affidavit stating that plaintiff had appeared for an EUO, but plaintiff failed to do so. As plaintiff did not otherwise challenge the implicit CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.”

It is funny – I got dinged on the Metro Health rule awhile back. But to blatantly say the person failed to appear because i said so is not necessarily a valid holding either.

The CPLR 3212(g) paradigm

Wave Med. Servs., P.C. v Hertz Vehs., LLC, 2022 NY Slip Op 50908(U)(App. Term 2d Dept. 2022_

The Civil Court’s language could also lend itself to the interpretation that the record established, as incontrovertible for all purposes in the action, that plaintiff had mailed the claim forms to defendant. This reading is also problematic. “[P]roof of proper mailing gives rise to a presumption that the item was received by the addressee” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). However, that presumption is rebuttable. A rebuttal of the presumption of receipt can also constitute a rebuttal of the proof of mailing—while it can be true both that a provider mailed a claim form to an insurer and that the insurer did not receive it, on a motion for summary judgment, proof of nonreceipt calls into question whether the claim forms were ever mailed in the first instance (see Parisien v Travelers Ins. Co., 65 Misc 3d 154[A], 2019 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Irina Acupuncture, P.C. v Auto One Ins. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50781[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59, 61 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). A proposition cannot be both rebuttable and incontrovertible at the same [*3]time. Thus, on this record, the court’s apparent determination that there is a triable issue of fact as to whether defendant received the claims—the basis for holding a trial—cannot be reconciled with any interpretation of the court’s order to the effect that it is incontrovertible, based upon the motion papers, that plaintiff mailed the claims.

In the alternative and in light of the above, by invoking CPLR 3212 (g) and limiting the trial to “the issues raised by [defendant] in its denials/Answer,” the Civil Court may have intended to shift to defendant the burden of proof at trial regarding receipt of the claim forms and/or require defendant to present its evidence on that issue first. However, it is not proper to use CPLR 3212 (g) to shift the burden or order of proof on an issue at trial (see Island Life Chiropractic, P.C. v Travelers Ins. Co., 64 Misc 3d 143[A], 2019 NY Slip Op 51273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 32 Misc 3d 63 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Rather, as noted, CPLR 3212 (g) is to be used, where “practicable,” only to “ascertain which facts are not in dispute or are incontrovertible,” and thereby limit the factual questions to be tried.

In view of the foregoing and upon the record presented, it was improper for the Civil Court to make CPLR 3212 (g) findings and limit the issues for trial (cf. e.g. Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).”

Oh the world is CPLR 3212(g) is quite nuanced.

Statute of Limitations: 6 years when denial is received

New Millennium Med. Imaging, P.C. v GEICO, 2022 NY Slip Op 22300 (App. Term 2d Dept. 2022)

Here is an issue I have not countenanced often. When a denial is issued prior 30-days after a bill is received, does the SOL time period run from date of denial or bill + 30 days? The answer is neither. In this case, the time to commence the action would be when Applicant received the denial.

“Here, defendant mailed its denial of claim form on Monday, October 3, 2011, from Woodbury, New York, to Flushing, New York, and plaintiff commenced this action on October 6, 2017. In order to hold that the commencement of this action occurred after the statute of limitations had expired, this court would have to find that it is reasonable to presume that plaintiff received the denial of claim form by October 5, 2011—two days after it was mailed. In [*3]the circumstances presented on this record, we do not find that to be a reasonable presumption.”

You should note that CPLR 2103(b) is still applicable “[noting that the CPLR time period was extended “from three to five days in 1982 because the existing three-day (period) was seen as inadequate”]). Thus, CPLR 2103 (b) (2) may be useful as a guide to help determine the presumptive reasonable date of receipt; however, a properly-mailed item should not automatically be presumed to be received exactly five or six days thereafter. Rather, receipt can, based on the particular facts presented, be presumed to be less than five or six days (for example if it was mailed from the same zip code as the addressee’s) or greater than five or six days after mailing, depending on the factors outlined above.”

You know what? I agree with this decision.

Reasonable Justification for late submission

Stand-Up MRI of the Bronx, P.C. v MVAIC Ins. Co., 2022 NY Slip Op 50789(U)(App. Term 2d Dept. 2022)

“In opposition to MVAIC’s motion, plaintiff demonstrated that it had initially sent the claims at issue to an insurance company, but after plaintiff learned that the insurance company would not cover the claims, plaintiff sent the claims to MVAIC. However, plaintiff did not establish that it had provided MVAIC with a reasonable justification as to why it had initially submitted the claims to the insurance company. As a result, plaintiff did not establish that it had provided MVAIC with a reasonable justification for its untimely submission to MVAIC of the claim forms “

Stand up left our the “Why”. Harkens back to a motion to conditionally certify a class on an FLSA case and my papers failed to satisfy (according to the Magistrate) the “why” element in my party declaration. Let this be a lesson – “why” did you sent to the wrong carrier?

It is personal knowledge again

SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50775(U)(App. Term 2d Dept. 2022)

“Defendant submitted the affirmation of an attorney who stated that she was in her firm’s office on the dates on which the EUOs were scheduled, that she would have either conducted the EUO herself or assigned another attorney to do so, and that plaintiff did not appear. She was not required to state that she was present in the [*2]office at any specific time on the scheduled dates

I honestly dislike those affidavits. They read as a lazy person’s way to prove a no-show, and I tend to wonder if this practice or protocol really happens.

In the new virtual world, I think the no-show affidavits will be cleaner and more accurate.

The Declaratory Judgment Order v. The Civil Court order

First in time, first in right

Hand By Hand, PT, P.C. v New York Cent. Mut. Fire Ins. Co., 2022 NY Slip Op 50774(U)(App. Term 2d Dept. 2022)

“In any event, contrary to defendant’s contention in the Civil Court, this action was not barred based upon the April 19, 2018 order in the Supreme Court declaratory judgment action enjoining plaintiff from proceeding in this action, as that order was entered after the default judgment had been entered herein, and terminated upon the entry of the declaratory judgment on May 20, 2019 and there was no disposition against plaintiff in that judgment (see generally DSD Acupuncture, P.C. v Metlife Auto & Home, 49 Misc 3d 153[A], 2015 NY Slip Op 51778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, we find that the Civil Court improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.”

When interest clearly does not matter

When Desantis gets to appoint an entire kingdom of DCA judges, the wrecking ball to Florida PIP litigation is unleashed. This does not even take into account the likely repeal of this coverage in the not so distant future in Fla. In a way, moving to a Med-payment system with mandatory $25k/$50k coverage will be better for the public and the attorneys looking to earn a living in the Fla. PI jungle.

Here are two cases that are off the charts.


“However, regardless of the incorrect interpretation of how to calculate interest, we affirm the trial court’s finding that the amount in controversy is de minimis. “The legal maxim ‘de minimis non curat lex,’ simply means that the law does not care for small things.” Loeffler v. Roe, 69 So. 2d 331, 338 (Fla. 1953). The amount in controversy here, $4.17, is de minimis and is a trifling amount.

The principle of de minimis “is a hallowed, long established and long recognized principle of law, and a party is entitled to call it in aid.” Alec Samuels, De Minimis Non Curat Lex, 1985 Statute L. Rev. 167, 167 (1985). Seeking trifling amounts of money involving the courts is a “waste of time and money, and impairing the dignity of the court and the judge.” Id. at 168. The principle of de minimis has been upheld in this court and other courts. See L.H. v. State, 803 So. 2d 862, 864 n.1 (Fla. 4th DCA 2002) (finding a $4 discrepancy in the calculation of restitution was de minimis); Winter Garden Citrus v. Parrish, 438 So. 2d 472 (Fla. 1st DCA 1983) (denying attorney’s fees because a loss of supplemental benefits for a
period of five days was de minimis); Wilkerson v. Wilkerson, 717 So. 2d 1118, 1119 (Fla. 1st DCA 1998) (affirming child support obligation that exceeded support guidelines by $1.50, finding that the “negligible amount . . . does not warrant remand for justification, recalculation or other proceedings”); Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (“[A] technical victory may be so insignificant . . . as to be insufficient to support prevailing party status” for the purposes of an award of attorney’s fees.).

A de minimis amount in controversy does not warrant reversal. See Eureka Corp. v. Guardian Tr. Co., 139 So. 198, 199 (Fla. 1932) (“[B]y the well-settled rule of this court under the facts of this case such an allowance was de minimis no curat lex, for which reversal does not lie.”). In United Automobile Insurance Co. v. Alfonso, 17 Fla. L. Weekly Supp. 887a (Fla. 11th Jud. Cir. July 1, 2010), the court applied the doctrine of “de minimis non curat lex” to a suit for a purported interest miscalculation of $2.53 “brought painfully for no other justification than the award of attorney’s fees.” Id. Similarly, it appears that the present case was brought not for the de minimis interest, but rather for the award of attorney’s fees.

In summary, we affirm the trial court’s determination that the accumulated interest of $4.17 was de minimis, and clarify the proper computation of interest pursuant to these statutes.

No attorney fee due to the de minimus theory.


“Applying the plain language and in para materia principles to sections 627.730, 627.731, and 627.736(1), (4)(b), (4)(d), and (8), we conclude that the statutory entitlement to interest on overdue PIP benefits is not in and of itself a PIP benefit for which attorney’s fees are payable under section 627.736(8). In other words, a dispute over whether interest is due or paid in the correct amount is not a dispute as to benefits payable for medical, surgical, funeral, and disability insurance benefits. Thus, litigation over the payment of interest due on PIP benefits does not trigger entitlement to attorney’s fees for the claimant.”

“Applying section 627.428(1)’s plain language, the trial court erred in awarding the Provider’s attorney’s fees because no contractual or policy provision supports the award for enforcing the payment of interest.
Applying the plain language and in para materia principles to the pertinent provisions of the Florida Motor Vehicle No-Fault Law discussed above, the trial court erred in awarding the Provider’s attorney’s fees because interest owed on a late PIP benefit payment is not in and of itself a PIP benefit.

Having determined the trial court erred in awarding the Provider’s attorney’s fees, we reverse and remand with instructions for the trial court to vacate the final judgment awarding the Provider’s attorney’s fees rendered on June 18, 2021. Our reversal is without prejudice to the entry of a judgment imposing taxable costs.”

Why pay interest if the only penalty is a $7.00 lawsuit? At best, I can see a class action that could trigger a class action attorney fee, but that is a headache.

80% of the billed amount can be


(1) “The court entered an order denying Progressive’s motion and granting BOT’s motion; the
order states that the ruling was based on Geico Indemnity Co. v. Accident & Injury Clinic, Inc. ex rel. Irizarry, 290 So. 3d 980 (Fla. 5th DCA 2019), and reflects the court’s conclusion that Progressive
“was required to pay 80% of the applicable fee schedule amount for [BOT’s] charges . . . or to pay the charge at 100% of the full amount billed for those charges billed below 80% of the schedule of
maximum charges.”

(2) “Summarizing, these cases establish that a PIP insurer whose policy includes a notice that it may use the statutory schedule of maximum charges to determine provider reimbursements must (1) pay 100 percent of the amount billed if a provider charges less than 80 percent of the amount allowed under the schedule of maximum charges and (2) pay 80 percent of the allowable amount under the applicable schedule of maximum charges for charges that exceed 80 percent of 100 percent of the allowable amount calculated under the applicable schedule of maximum charges. As we next explain,
we disagree with this proposition”

(3) “Given the full context of these provisions, a reasonable reading of the statutory text requires that reimbursement limitations based on the schedule of maximum charges be understood—as State Farm contends—simply as an optional method of capping reimbursements rather than an exclusive
method for determining reimbursement rates. By its very nature, a limitation based on a schedule of
maximum charges establishes a ceiling but not a floor.” [This was from the Fla. Supreme Court]

(4) “Progressive’s payment of BOT’s charges at 80 percent of the amount that BOT itself chose to bill unquestionably satisfied Progressive’s obligation under the coverage mandate—that is, to reimburse BOT for 80 percent of the reasonable expenses BOT incurred in treating Progressive’s insured, Ms. Bailey.”


There are two avenues of reimbursement – the fee schedule and R and C. The prior precedent used to be simply that you chose one and that is it. The Courts have held that you can play with both mechanisms of reimbursement, of course using as an expert to achieve the more advantageous result for the carrier

“However, even if Dr. Dauer’s affidavit did in fact rely entirely on the Medicare Part B fee schedules as the basis for reasonableness (which it did not), the affidavit was not “pure opinion” evidence because it resulted from the application of reliable principles and methods to the facts of the case. The affidavit addresses Dr. Dauer’s qualifications as a medical doctor, his experience with reimbursement levels in the community, the factors in section 627.736(5)(a)1., as well as the underlying data Dr. Dauer reviewed.
The affidavit explains which information influenced Dr. Dauer’s opinion regarding reasonableness and how, and also individually addresses each of the Daubert factors in relation to the specific methodology used. Finally, the affidavit explains the rationale behind the methodology used and why it was
reliable, and also explains why Dr. Dauer believed his conclusions were consistent with the PIP statute and prevailing practices in the industry.”