Here I am

I am sure that those of you who read my blog on a regular or semi-regular basis have figured out who I was by now.  Let me know what you all think of the new layout that wordpress offers.  It is really neat.

Lastly, I owe a giant debt of gratitude to my friend marc of lisquared.com, who not only is hosting this site, but has provided me with a significant amount of technical support.

Many thanks

I would like to thank Roy Mura at coverage counsel for including this blog in his google search. The irony is that you never really know who is reading your blog until you come across something like that, while reading their blog.

As to Dave Gottlieb’s beard from nofaultparadise, my vote is for him to keep the shaved head, non-facial hair look. That beard is a public health hazard. Please leave your comments on his blog as to what you think…

In the Rehab of Interboro

Matter of Interboro Mut. Indem. Ins. Co.
2009 NY Slip Op 29225 (Sup. Ct. Nasaau Co. 2009)

This case, despite how simple it appears, involved an extremely complicated analysis of Article 73 of the Insurance Law, Article 74 of the Insurance Law (Companies involved in rehabilitation/liquidation), Article 51 of the Insurance Law (No-fault), CPLR Section 2221 (leave to renew), and why established precedent from the 1930s should guide this matter, as opposed to the plethora of modern no-fault law cases.

The case may be best summarized as follows. A company exiting rehabilitation is in a completely different position than a company that never entered rehabilitation. Similar to an entity that succeeds in fulfilling its obligations under a Chapter 11 or Chapter 13 bankruptcy plan, an entity that successfully exits rehabilitation will play by a different set of rules. That is really what this case is about, and within the confines of commercial practice, this makes sense.

Damages.

While there is a drought in the well of new no-fault cases, here is a case that garnered my attention.

Liberty Mut. Ins. Co. v Perez
2009 NY Slip Op 50993(U) (App. Term 1st Dept. 2009).

The facts are simple. Defendant, who admitted dozing off while driving a vehicle, hit a legally parked vehicle, insured by Liberty, on a street. The Liberty vehicle was totalled. Plaintiff Subrogee insurance carrier (Liberty) paid out $19,000 in property damage benefits to its insured and sued Defendant, presumably under theories of equitable and contractual subrogation.

Procedurally, Plaintiff subrogee moved for summary judgment on both liability and damages. Defendant did not put up a fight as to liability but opined that Plaintiff did not demonstrate its damages as a matter of law. Civil Court granted Plaintiff summary judgment as to liability and damages. Defendant appealed. The Appellate Term modified, and remanded to Civil Court for an assessment of damages.

Plaintiff in its motion apparently did not “conclusively establish the market value of the vehicle prior to the accident.” Furthermore, the court held that on remand, “defendant will have the opportunity to present evidence challenging plaintiff’s decision to declare the vehicle a total loss.”

So, I take it that Plaintiff would have met its burden had it: (a) presented an affidavit that in accordance with the insurance regulations, the vehicle was a total loss because the cost of repairing it would be in excess of the percentage of loss that is required before a vehicle may be deemed a total loss; and (b) offered competent evidence as to the market value of the vehicle prior to the loss.

In all honestly, this is not a difficult burden at all, when you think about it. It probably requires a form affidavit with certain variables that could be adjusted on a case by case basis. What is interesting is that I was always of the belief that “damages” in property damage matters always required an inquest (on default) or a hearing on damages (when the defendant answered the complaint). I guess according to the Appellate Term, damages can even be adjudged as a matter of law on motion papers.

There is a no-fault relationship here, actually. But, it has nothing to do with the usual “medical provider v. carrier” fight that we deal with on a daily basis. Rather, in a rear-end or uncontested liability case, it would appear that within the confines of an APIP subrogation case or Basic PIP subrogation case (in the limited circumstances this type of action is allowed), an insurance carrier’s proof of receipt of the bills and the amount it paid out to its Subrogor or the Subrogor’s assignee, would conclusively establish an insurance carrier’s damages.

Thus, while general practitioners have always grumbled about how no-fault decisions procedurally impact them, we in the world of no-fault, again, can say that a non no-fault case has now impacted some segment of the no-fault bar. No, not the one you drink at.

Forget the insurance carriers. How about the banks?

There has been a dearth of no-fault news out in the most recent decision website. This is not to say that more earth shattering or technical challenges to either virgin or somewhat settled points of law are not on the horizon. I have first-hand knowledge in telling you that some interesting decisions will be coming down the pike in the next few months. I just hope they go my way.

With that introduction, there was a case that came from the District Court Nassau County that caught my attention. It makes me think that whatever prejudices or problems any of us might have had with insurance carriers at one point, there is much worse out there

Meet Judith Lawrence.

And lastly, next time you bash an insurance company, remember that trillions of dollars went to support, in part, institutions like the Petitioner below.

Deutsche Bank Natl. Trust Co. v Oliver

2009 NY Slip Op 29197 (Dis. Ct. Nassau Co. 2009)

In an era when tent cities and new Hoovervilles are rising from the ashes of a foreclosure crisis all across America (NY Times, 3/26/09, p.1), the petitioner, Deutsche Bank National Trust Co., asserts a direct legal challenge to the Court’s equitable authority to consider a request for “more time” by a family facing a post-foreclosure eviction. For the reasons stated hereinafter, the Court rejects the challenge, and reiterates that the Court retains the power and equitable discretion to consider claims of genuine hardship in the face of an imminent eviction.”

………………………………………………………………………………………………………………………………………..

“Respondent, Judith Lawrence, made a timely application to this Court for “more time” by filing her request for an Order to Show Cause on March 10, 2009. Her affidavit, on a form provided by the Court, appears to ask for nothing more than “more time.” Although the Court form includes broad, boilerplate language, respecting general requests for relief from a default, it also includes language through which the applicant may seek “such other and further relief as may be just and proper” as well as language providing that, “pending the determination of this motion that the . . .warrant of eviction be stayed.”

…………………………………………………………………………………………………………………

“Judith Lawrence’s moving affidavit presents an extremely compelling equitable case for “more time.” In simple, indeed moving terms, she states: “I need more time as my mom lives with me – she is 92 years. I am getting her in a nursing home and SS documents are delayed as she has dementia. I just need more time. Thank you.”

……………………………………………………………………………………………………………………………………………..

“According to petitioner, the “sole equitable relief” permitted on application of a holdover occupant after a judgment of possession “is the statutory authority to grant a stay of issuance or execution of a warrant of eviction for a period not greater than six months from the date of entry of judgment,” further conditioned upon payment “for the occupation of the premises for the period of the stay and such deposit shall also include all rent unpaid by the occupant prior to the period of the stay” (citing RPAPL §753). *3 Based on the provisions cited, petitioner contends that “the relief in the Order was beyond the jurisdiction of this Court to grant except upon condition of payment of $10,000.00 [for five months’ use and occupancy] to the Owner or into the Court.

……………………………………………………………………………………………………………………………………………….

The Court must reject the petitioner’s contentions. CPLR 2201 broadly empowers the Court to grant a stay of proceedings “in a proper case, upon such terms as may be just.” The propriety of granting a stay in any given case is limited only by “the Court’s own sense of discretion, prudence and justice”

………………………………………………………………………………………………………………………………………………

Considering Ms. Lawrence’s decades-long occupancy of the subject premises (dating back to 1990), the circumstances under which the premises were lost and then sold to petitioner for $500.00, respondent’s need to care for her 92 year old mother, her *4 mother’s dementia, the practical difficulties she has encountered arranging for nursing home care for her mother, and her apparently good-faith, honest request for “more time”, the Court believes it can properly afford respondent a reasonable amount of additional time to locate suitable accommodations for herself and her mother without violating petitioner’s rights or the Court’s oath of office

MRI SCANS – from the NY Times

Since many PIP disputes center around MRI scans, it seems fit to discuss a New York Times article that involves the efficacy of MRI Scans. The piece was published on March 1, 2009 and is entitled: “Good or Useless, Medical Scans Cost the Same”

My question: Will this allow “discovery” or “additional verification requests” in relation to certain MRI’s. For example, if a knee or shoulder MRI is a pre-requisite for surgery, will an insurance carrier seek the make, model and quality of the MRI machine as well as the actual films and deny the MRI (as well as the surgery) based upon the poor quality of the MRI machine and the films that result from the same? Read this article and ponder the above….

When Gail Kislevitz had an M.R.I. scan of her knee, it came back blurry, “uninterpretable,” her orthopedist told her.

Skip to next paragraph

Images From Dr. Freddie Fu/University of Pittsburgh

A poor-quality scan of a ligament, left, and one of high quality. Many scans are done by machines that are a decade old.

Readers’ Comments

Readers shared their thoughts on this article.

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Her insurer refused to pay for another scan, but the doctor said he was sure she had torn cartilage that stabilizes the knee and suggested an operation to fix it. After the surgery, Ms. Kislevitz, 57, of Ridgewood, N.J., received a surprise: the cartilage had not been torn after all.

She had a long rehabilitation. And her insurer paid for the operation. But her knee is no better.

More than 95 million high-tech scans are done each year, and medical imaging, including CT, M.R.I. and PET scans, has ballooned into a $100-billion-a-year industry in the United States, with Medicare paying for $14 billion of that. But recent studies show that as many as 20 percent to 50 percent of the procedures should never have been done because their results did not help diagnose ailments or treat patients.

“The system is just totally, totally broken,” said Dr. Vijay Rao, the chairwoman of the radiology department at Thomas Jefferson University Hospital, in Philadelphia.

Radiologists say a decent M.R.I. scan should have clearly shown whether the cartilage in Ms. Kislevitz, a meniscus, was torn. But bad scans, medical experts say, are part of a growing problem with medical imaging.

Many factors contribute. Insurers pay the same for a scan done on a 10-year-old machine as one on the latest model, though the differences in the images can be significant.

Insurers do not distinguish between scans that are done poorly or done well or read by less- or more-qualified doctors. Aside from mammography, whose standards were established by a law that went into effect more than a decade ago, the field is largely unregulated. And increasingly, doctors refer patients to scanning centers they own and profit from.

Ten years ago, the age of a scanner might not have mattered so much. Now, said Dr. Gary Glazer, the chairman of radiology at Stanford, technology has advanced so much that the older scanner “is not the same machine.”

“I can tell you from my experience that between those extremes the gap is huge,” Dr. Glazer said.

Yet, he added, many scanning machines used today are a decade old.

Imaging centers can, if they choose, become accredited by the American College of Radiology. That requires, among other things, scanning a phantom, a device that simulates a body part. Technologists must also be certified, and there are standards for supervising physicians. And the scanners must be regularly assessed to ensure they are properly functioning.

But many centers are not accredited, although the percentage is not known because there is no national registry of imaging centers.

Accrediting will be partly addressed by a little noticed aspect of a wide-ranging Medicare law passed last year. After it goes into effect in 2012, Medicare will pay only for scans done at accredited centers. But imaging experts say the law fixes only part of the problem. High-tech scanning is complicated, and there is no consensus on objective measures to ensure quality. Even with the new law, there is still little assurance that scans will be appropriately ordered and interpreted or that a scanner will be up to date.

Radiologists are struck by the wide variation in the quality of scans, and they say there is little patients can do other than to ask why the scan is necessary and, if it is, to ask about accreditation, the credentials of the person reading the scan and the age of the scanner.

“The studies I see coming from the outside vary from marginal quality to very good quality,” said Dr. Chris Beaulieu, a Stanford radiology professor. “Some of it is related to equipment, and some is related to people with very good equipment who don’t know how to use it right. And on the interpretation side, there is also a very wide range of quality or accuracy, in my opinion.”

Interpretation can be crucial, Dr. Beaulieu added. “A good radiologist can sometimes accurately read scans off of a lower-quality scanner,” he said. “I see that all the time. A good radiologist and a lower-quality scan could be better than a bad radiologist and a good scan.”

But logical as it might seem to pay more for a better scan, there are problems. Health insurers have no way of knowing whether scans are good, said Susan Pisano, a spokeswoman for America’s Health Insurance Plans, a trade group. Doctors, not insurers, receive the images and reports, and all insurers can do is notice if there are frequent requests to redo scans from a particular center.

“We see a lot of poor-quality scans,” said Dr. Freddie Fu, the chairman of the orthopedic surgery department at the University of Pittsburgh Medical Center. “I joke with the patients: The insurance pays the same amount of money for the scan. You get a hamburger somewhere else and a prime rib here for the same price.”

Another concern is the growing number of doctors who refer patients for imaging done by scanners they own and profit from. Studies have found that up to 3.2 times as many scans are ordered in such cases

In
a
recent report, the Government Accountability Office said nearly two-thirds of the money Medicare paid for imaging was for scans in doctors’ offices. And, the report added, doctors were receiving an ever larger part of their income from providing scanning services. Not only were patients more likely to have scans if a doctor did this, but the quality of some of the scans was questioned.

“No comprehensive national standards exist for services delivered in physician offices other than a requirement that imaging services are to be provided under at least general physician supervision,” the G.A.O. wrote.

Private health insurers were concerned, too. “These are alarming patterns that have also been observed in the private sector,” America’s Health Insurance Plans wrote in a response to the G.A.O.

It is clear why self-referral can be tempting, said Dr. Bruce Hillman, a radiology professor at the University of Virginia.

“It’s all profits,” Dr. Hillman said, adding that a group of doctors can make an extra $500,000 to $1 million a year simply by acquiring a scanner.

For now, radiologists said, patients and insurers are often in a bind.

“If you are going to buy a car,” said Dr. Beaulieu, the Stanford professor, “and you have a certain amount of money to spend, you know what you are getting. You know what you will get if you buy a Yugo or if you buy a BMW.”

But with imaging, Dr. Beaulieu said, “you don’t know: you might get a Yugo and you might get a BMW.”

Accelerated Judgment not availabe in criminal proceedings

Yes, this is a no fault blog that I maintain, mostly for my own amusement. I take pride in the level of scholarship set forth in this blog. I try to avoid topics that do not apply either directly or tangentially to the arena of PIP issues. This will be a rare exception.

In my daily reading of the App. Term criminal cases, I found an interesting issue that has satisfied my curiosity. Likewise, I find the outcome disturbing.

The case that is interesting is entitled: People v Manupelli (Christine), 2008 NY Slip Op 28520 (App. Term 2d Dept. 9th and 10th Jud. Dis. 2008). It says the following:

In this prosecution based on defendants’ alleged violation of local ordinances requiring landfill permits and barring the diversion of rainwater onto neighboring properties, defendants moved pretrial to dismiss the accusatory instruments pursuant to CPLR 3211 (a) (7). The Justice Court granted the motion, concluding, in essence, that there was a legal impediment to conviction (CPL 170.30 [1] [f]), finding that defendants’ proof in support of the motion established both their entitlement to an exclusion from the permit requirement and the People’s inability to prove, on the facts, that defendants are legally responsible for the alleged illegal diversion of rainwater onto a neighbor’s property.

Defendants’ motion should have been denied. With rare exceptions (e.g. CPL 60.10), the CPLR is inapplicable to criminal proceedings (CPLR 101; CPL 1.10 [1]; People v Knobel, 94 NY2d 226, 230 [1999]; People v Crisp, 268 AD2d 247 [2000]; People v Silva, 122 AD2d 750 [1986]; see generally People ex rel. Hirschberg v Orange County Court, 271 NY 151, 155 [1936]). The authority of a criminal court to dismiss an information pursuant to a pretrial motion (see CPL 170.30) does not include a motion for accelerated judgment available to civil court litigants (see CPLR 3211, 3212), and, in any event, the court had no authority to dismiss an accusatory instrument on the ground that, in its view, the People could not produce sufficient [*2]evidence to prevail at trial (e.g. People v Asher, 16 Misc 3d 89, 91 [App Term, 9th & 10th Jud Dists 2007]). Thus, on this record, there were no grounds to dismiss the accusatory instrument upon defendants’ pretrial motion (see CPL 170.30).

My thought has always been this: why is it that somebody who risks going to prison or ending up with legal impediments attendant to a criminal conviction have markedly less procedural rights than a civil litigant? That has bothered me to no end and, yet in New York, that is the rule. You need not be a criminal attorney to see how wrong this all is. Yet, this is the world we live in.

Food for thought this Christmas.

Some newer cases

It has been a real quiet few months in our world of law. Nothing too substantial has come out recently. There have been some procedural cases, which have an effect on all areas of law. Here are some of the cases I have found which have interesting overtones to them:

Stipulation of discontinuance with prejudice = presumption of res judicata

Support Billing & Mgt. Co. v State Farm Mut. Ins. Co.
2008 NYSlipOp 52226(U)(App. Term 2d Dept. 2008)

“A stipulation of discontinuance which specifies that it is “with prejudice” raises a presumption that the stipulation is to be given res judicata effect in future litigation on the same cause of action”

Discovery on a precluded defense requires proof of a timely denial – timely denial means more than it being facially timely…

Corona Hgts. Med., P.C. v State Farm Mut. Auto. Ins. Co.
2008 NYSlipOp 52185(U)(App. Term 2d Dept. 2008)

“Where a discovery demand concerns matters relating to a defense which a defendant is precluded from raising, it is palpably improper, notwithstanding the fact that the plaintiff did not specifically object thereto (see A.B. Med. Servs. PLLC, 11 Misc 3d 71). As defendant did not establish that it timely denied plaintiff’s claims, to the extent defendant seeks discovery in support of its defense of lack of medical necessity, discovery of such precluded matter is palpably improper”

Court sanctions more than one discovery device being demanded simulataneously

First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co.

2008 NY Slip Op 51963(U)(App. Term 2d Dept, 2008).

In addition, defendant is entitled to conduct an EBT of plaintiff notwithstanding the fact that defendant also served a demand for discovery and inspection of documents (see Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 293 [1984]).

CCA 1201 – give us a reason for allowing an extraterritorial subpoena

Bronxborough Med., P.C. v Travelers Ins. Co.
21 Misc.3d 21 (App. Term 2d Dept. 2008)

Inasmuch as plaintiff’s moving papers failed to establish that the interests of justice would be served by permitting plaintiff to serve, outside the City of New York and the adjoining counties, a subpoena which would require defendant’s employee to appear at trial, and, in addition, did not set forth the location at which plaintiff sought to serve the subpoena, plaintiff’s motion was properly denied.

Don’t send the peer or IME upon demand – the courts will forgive you, but the DOI probably will not.

Careplus Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

21 Misc.3d 18 (App. Term 2d Dept. 2008)

In response to a provider seeking to preclude an insurance carrier from raising a defense of lack of medical necessity based upon the pre-suit failure to turn over the peer or IME report in accordance with the regulations, the Appellate Term said no so fast…

“The Insurance Department Regulations provide no sanction for an insurer’s failure to provide a peer review report upon the written{**21 Misc 3d at 20}{**21 Misc 3d at 20} request for one by a provider (see e.g. A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co., 12 Misc 3d 143[A], 2006 NY Slip Op 51415[U] [App Term, 2d & 11th Jud Dists 2006]). While plaintiff urges the court to impose the sanction of preclusion here, we decline to do so because “[h]ad it been the intent of the Department of Insurance” to impose such a sanction, “it would have so provided”

Do not file a notice of trial without obtaining a final order of preclusion or dismissal, etc.

Iscowitz v. County of Suffolk
54 A.D.3d 725 (2d Dept. 2008)

“The plaintiffs waived any objection to the adequacy and timeliness of the disclosure by filing a note of issue and certificate of readiness prior to moving pursuant to CPLR 3126 for the imposition of a discovery sanction

Preclusion – The Appellate Division spells out why we should not sign preclusion stipulations.

Allen v Calleja
2008 NY Slip Op 08685 (2d Dept. 2008)

To warrant preclusion, “the Supreme Court must determine that the offending party’s lack of cooperation with disclosure was willful, deliberate, and contumacious” (Assael v Metropolitan Tr. Auth., 4 AD3d 443, 443; see CPLR 3126[2]; Moog v City of New York, 30 AD3d 490). Such conduct may be found where, for example, a party repeatedly fails to comply with court orders directing it to produce certain discovery without adequate excuses therefor

And when it comes to the inability to invoke “preclusion” based upon a single failure to comply with a conditional order of preclusion (when this was the first discovery order in the case), the Appellate Term, First Department said the following:

Pelham Parkway Neuro & Diagnostic, P.C. v. Liberty Mut. Ins. Co.

16 Misc.3d 130(A)(App. Term 1st Dept. 2007)

In this action to recover assigned first party no-fault benefits, the drastic sanction of precluding defendant from asserting its defense of exhaustion of policy limits was unwarranted in the absence of a showing that defendant’s single failure to comply with the parties’ discovery stipulation was willful and contumacious

Dan Medical is safe for now (well sort of)

Bajaj v General Assurance
2008 NYSlipOp 84460(U)(2d Dept. 2008)

“Motion by the plaintiff for leave to appeal to this court from an order of the Appellate Term, Second and Eleventh Judicial Districts, dated October 22, 2007, which reversed a judgment of the Civil Court of the City of New York, Queens County, entered February 9, 2006.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied.”

Comment: Baja was the case that held that a Plaintiff cannot make its prima facie case based upon a notice to admit. This was the companion to Empire State Psychological Servs., P.C. v Travelers Ins. Co. (App. Term 2d Dept. 2007), which held that interrogatories admitting receipt and the bills being overdue was insufficient to make a prima facie case. The above cases were ruled on as they were because the Appellate Term, Second Department, has consistently opined that the billing claim forms need to be entered into evidence.

This is in contrast to the Appellate Term, First Department, which has routinely held that a prima facie case is set forth through a literal interpretation of Mary Immaculate Hospital as observed in Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc.3d 8 (App. Term 1st Dept. 2007), to wit:

“[d]efendant insurer admitted that it received the no-fault claims at issue and made partial payment on the claims. Inasmuch as defendant’s verified answers to the interrogatories constituted admissions of a party, which are admissible as evidence, defendant may not now be heard to argue that plaintiff failed to submit proof that the claims had been mailed and received, and that they were overdue (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). To the extent that Empire State Psychological Servs., P.C. v Travelers Ins. Co. (13 Misc 3d 131[A], 2006 NY Slip Op 51869[U] [2006]) supports a contrary conclusion, we decline to follow it.”

Had Baja made its way to the Appellate Division, Second Department, then it is likely that the world of Dan Medical would have gone the way of vicarious liability in leasehold cases following the Graves Amendment.

Avoid the invectives

Great Wall Acupuncture, P.C. v General Assur. Co.
2008 NY Slip Op 28350 (App. Term 2d Dept. 2008)

This case has been commented on numerous times before. It is one of many Mallela discovery motions that are granted as long as there is some shred of evidence that there is an improper incorporation issue. This follows the recent Appellate Division case of One Beacon Ins. Group, LLC v. Midland Medical Care, P.C., 2008 N.Y. Slip Op. 06813 (2d Dept. 2008), which held as follows:

“However, in opposition to the motion, the plaintiffs submitted sufficient evidentiary proof to raise an issue of fact as to whether Proscan was actually controlled by a management company owned by unlicensed individuals in violation of the Business Corporation Law”Accordingly, the appellants’ motion for summary judgment was properly denied with respect to all three causes of action, which allege fraudulent incorporation.”

“The Supreme Court properly granted that branch of the plaintiffs’ cross motion which was for disclosure of certain financial documents. Contrary to the appellants’ contention, the plaintiffs were not required to make a showing of “good cause” for such disclosure”

I like this case for the following quotation: “Although plaintiff contends that the court erred in denying the cross motion for an order sanctioning defendant and defendant’s counsel, in our opinion, the court providently exercised its discretion. We remind plaintiff’s counsel that “[f]rivolous conduct shall include the making of a frivolous motion for costs and sanctions” (Rules of the Chief Administrator [22 NYCRR] § 130-1.1). We further caution plaintiff’s counsel to refrain from including invective and ad hominem attacks in his papers.”