Negligent hand shaking is not actionable

Gladstone v Fallon, 2016 NY Slip Op 03642 (4th Dept. 2016)

Plaintiffs appeal from an order granting defendant’s motion for summary judgment dismissing the complaint, which seeks to recover damages for personal injuries allegedly sustained by Diane M. Gladstone (plaintiff) as a result of defendant’s allegedly negligently shaking her hand.

It is [required only] that the care be commensurate with the risk and danger” (Nussbaum v Lacopo , 27 NY2d 311, 319). Here, “plaintiff failed to show that the act of this [defendant] as to [her] had possibilities of danger so many and apparent as to entitle [her] to be protected against the doing of it . . . Against this kind of unlikely misfortune, the law does not confer protection” (id. ). We thus conclude that defendant cannot be held liable for his alleged negligence in shakinghands with plaintiff (see generally Johnson v Vetter , 1991 WL 348415, *1-3 [Ct of common Pleas of Pa 1991)

It was NOT mailed

Contemporary Acupuncture, P.C. v Allstate Ins. Co., 2016 NY Slip Op 50464(U)(App. Term 2d Dept. 2016)

“Defendant’s motion for summary judgment dismissing the complaint was based on the alleged failure of plaintiff’s assignor to appear for duly scheduled examinations under oath (EUOs). Upon a review of the record, we find that defendant failed to establish a prima facie showing of its entitlement to summary judgment. Among other things, defendant failed to establish as a matter of law that the EUO notices and the denial of claim forms at issue had been properly and timely mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050

I only cite this case because of its mention to Progressive v. Infinite.  That case stood for the proposition that if a link in the mailing chain is missing, then an item cannot not be proven to be mailed.

Substitute IME’s – I need your help

I am going on record with my personal opinion that an insurance carrier at trial or framed issue hearing should not generally be able to substitute IME doctors, with two caveats.  First, if a peer doctor relies upon an IME among other records, then under the professional reliance exception to hearsay, the IME should be considered.  Second, if the IME is more of a peer review, then a substitute doctor would be proper.   But, if the IME reaches a conclusion based upon 98% evaluation and 2% record review (the normal IME), it seems like blatant hearsay if some other doctor is retained to testify.

What triggered this post?  I understand that some firms are using substitute IME doctors and judges are allowing this practice.

What judges and Courts are allowing this?  Thanks


The boilerplate “I mailed the verification letters”

J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co.,  2016 NY Slip Op 50033(U)(App. Term 2d Dept. 2016)

“Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s first and third through sixth causes of action are premature (see11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from an employee of National Billing & Collections, Inc., which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant”

Well again (and this time from a different plaintiff – he learned Rybak’s tricks), a similarly worded vague affidavit forces a trial.

One month delay in posting – reasonable excuse established

Sounds like a post for a good case?  Sorry.  Even the pressures of life can keep me from posting.  I will probably never abandon this blog.  Makes me the last of the Mohicans?  But, when I am on the road attending to rough trials, hearings and deposition schedules that do not let up, this blog seems to suffer a bit.  Rest assured, I am not taking up less than intelligent appeals or trying an endless medical malpractice case (learned my lesson).  Admittedly, I tried writing a no-fault practice treatise but I seem to always get diverted with practice related issues.  That is where the narrative here ends…

Corporate v. individual

Yellow Book Sales & Distrib. Co. Inc. v M & J Commodity Brokerage Corp., 2015 NY Slip Op 51652(U)(App. Term 2d Dept. 2015)

Lesson here on individual responsibility

“As the Court of Appeals stated more than 50 years ago: “[i]n modern times most commercial business is done between corporations, everyone in business knows that an individual stockholder or officer is not liable for his corporation’s engagements unless he signs individually, and where individual responsibility is demanded the nearly universal practice is that the officer signs twice — once as [*2]an officer and again as an individual”

Non-Receipt substantiated

Compas Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 51679(U)(App. Term 2d Dept. 2015)

IME no-show substantiated.

“However, with respect to the sixth cause of action, defendant sufficiently described its procedures for the receipt of mail and stated that defendant has no record of having received this claim. By rebutting the presumption of receipt, defendant raised a triable issue of fact as to whether this claim had been submitted to defendant (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).”

How come the verification non-receipt affidavits that are accepted as sufficient to raise an issue of fact are nowhere near as detailed?


Judge Judy’s son threw a tantroom

Levy v Smith, 2015 NY Slip Op 07824 (2d Dept. 2015)

I usually relegate this stuff to my Facebook page, but Judge Judy’s son (the Republican District Attorney of Putnam County) legal feud with the Putnam County Sheriff has me shaking my head more than I do most days.  So I am breaking the rule where I avoid expressing an opinion or posting about non no-fault or personal injury matters.  All I want to say is this: You are a public figure, you hold a very important position and you cannot deal with a “personal slight” through a private meeting?  Shame on you.  This State needs term limits in the worst way for elected figures.


Another Alrof citing

Clove Med. Supply, Inc. v IDS Prop. Cas. Ins. Co., 2015 NY Slip Op 51401(U)(App. Term 2d Dept. 2015)

“Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant’s motion was properly denied” Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co.,”

Oh Mr. IDS, your counsel did it to you again.

Loss Transfer limitations

Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Fla., 2015 NY Slip Op 06343 (2d Dept. 2015)

Follow the facts and the law on this case.

(1) “Johnson filed a claim with the petitioner seeking to recover first-party benefits, more commonly known as “no-fault” benefits, under Insurance Law § 5103. The petitioner ultimately paid Johnson a total of $59,906.97 in no-fault benefits.”

(2) “In the order appealed from, the Supreme Court denied the petition to vacate the arbitration award, granted the cross petition, and confirmed the award. The court began its analysis by noting that “[t]here are two types of no-fault disputes between insurers that are subject to mandatory arbitration: loss transfer and priority of payment (seeInsurance Law § 5105; 11 NYCRR 65-3.12; 11 NYCRR 65-4.11). The arbitration procedures established pursuant to section 5105 of the Insurance Law apply to disputes over priority of payment among insurers who are liable for the payment of first-party benefits (see Insurance Law § 5105[a][b]; 11 NYCRR 3.12[b]).”

(3) “Contrary to the petitioner’s contention, the arbitrator had the authority to rule on the issue of whether the controversy was subject to mandatory arbitration under Insurance Law § 5102 and its implementing regulations. An arbitrator’s authority generally “extends to only those issues that are actually presented by the parties” (Matter of Joan Hansen & Co., Inc. v Everlast World’s Boxing Headquarters Corp., 13 NY3d 168, 173). Therefore, an arbitrator is precluded from identifying and considering an affirmative defense that is not pleaded by a party to the arbitration. Here, however, the issue before the arbitrator cannot be characterized as an affirmative defense, such as lack of coverage.   Nor was the issue whether the petitioner satisfied a condition precedent to recovery in a loss-transfer proceeding (see Matter of Allstate Ins. Co. v New York Petroleum Assn. Compensation Trust, 104 AD3d 682). Rather, the issue before the arbitrator was the threshold issue of whether American Bankers was an “insurer” subject to the mandatory arbitration procedures of Insurance Law § 5105, and 11 NYCRR 3.12(b)”

(4) “To be upheld, an award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223 [citations omitted]; see Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 NY3d 251, 261; Matter of Public Serv. Mut. Ins. Co. v Fiduciary Ins. Co. of Am., 123 AD3d 933, 934; Matter of State Farm Mut. Auto. Ins. Co. v City of Yonkers, 21 AD3d 1110, 1111). Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether “any reasonable hypothesis can be found to support the questioned interpretation”

(5) “Here, the American Bankers’ policy did not provide no-fault insurance coverage for the type of accident underlying this dispute. Moreover, American Bankers did not insure a person, vehicle, or animal involved in the underlying accident, but only the stables at which the animal was boarded. Accordingly, American Bankers cannot be deemed to be an “insurer” as that term is defined by Insurance Law article 51 and the pertinent regulations.

(6) “Moreover, Insurance Law § 5105 does not apply here because New York’s No-Fault Law would not preclude American Bankers’ insureds from being held liable to pay damages in an action at law. The decision of this Court in Matter of Purex Indus. v Nationwide Mut. Ins. Co. (110 AD2d 67), does not support a contrary result. In that case, this Court ruled that the petitioner was “the self-insured owner of the vehicle involved in the accident” (id. at 69) and, thus, satisfied the statutory definition of an “insurer” that is “subject to mandatory arbitration for adjusting the payment of no-fault benefits between insurers,” since, “[b]ut for the No-Fault Law, petitioner would be liable as an insurer’ to [the respondent’s] insured in an action at law” (id. at 68). Here, on the other hand, the No-Fault Law would not preclude American Bankers’ insureds from being held liable in an action at law (see Hunter v OOIDA Risk Retention Group, Inc., 79 AD3d at 12).

According to this case, an insurance carrier that does not insure the actual instrumentality of a loss will not be liable in loss transfer to the payor carrier.  The issue of coverage or lack thereof may always be raised in arbitration. This should be contrasted to conditions precedent to bringing forth an arbitration, i.e., contact in UM cases.