Former Judge Michael Ciaffa has been located

People v. Pierre, 142 AD3d 566 (2d Dept. 2016)

First, I hope Judge Ciaffa returns to District Court.  I learned from him about the variable nature of an account stated when a debtor is uninsured or under-insured, and that a credit card interest rate may not be enforceable in certain situations.  Now in private practice, he is either on an 18-B panel or procuring private clients in the criminal defense arena.

I recall that I criticized one of his written no-fault opinions on here and, when I appeared in court one day, he called me up during calendar call and explained the rationale behind his decision.

Anyway, good to see his name again,

Catching up

The blog has been dormant for about 2 months.  As some of you are aware, I suffered tremendous personal issues.  Needless to say, the blog went unattended for a period longer than for what I am comfortable.  I will have this back and running very soon.  For those who offered help and did help me, many thanks.


Failure to preserve argument

Island Life Chiropractic, P.C. v Unitrin Auto & Home Ins. Co., 2016 NY Slip Op 51076(U)(App. Term 2d Dept. 2016)

“Island Life’s contention on appeal, in essence, that defendant Unitrin was not in privity with Kemper, and, thus, that the order in the declaratory judgment action in favor of Kemper has no preclusive effect in the instant action against Unitrin, is unpreserved for appellate review, because plaintiff failed to raise the issue in the Civil Court”

This case is interesting because the Appellate Term will sometimes allow unpreserved argument to be raised for the first time appeal and, other times, will explicitly disallow unpreserved argument to be raised on appeal.  While I wish I could give a list of unpreserved argument that could be raised on appeal, I cannot.  This is an ad hoc and sui generis determination, and your guess is as good as mine.


Equitable subrogation takes the backseat to the wording of the regualtion

(1) “Article 51 of the New York Insurance Law, enacted as the Comprehensive Motor [*3]Vehicle Insurance Reparations Act (see L 1973, ch 13), governs payments to reimburse a person for basic economic loss for personal injury arising out of the use or operation of a motor vehicle, irrespective of fault. Article 51 is commonly known as the No-Fault Law. The purpose of the No-Fault Law was to promote “prompt resolution of injury claims, limiting cost to consumers and alleviating unnecessary burdens on the courts” (Pommells v Perez, 4 NY3d 566, 571 [2005] [citations omitted])”

(2) “The applicable regulation, 11 NYCRR 65.3.11 (a) provides, in relevant part, that “an insurer shall pay benefits for any loss, other than death benefits, directly to the applicant or, . . . upon assignment by the applicant . . .shall pay benefits directly to providers of health care services. . .” (emphasis added). Aetna concedes that as a health insurer it is not a “provider of health care services” as contemplated by the language of this regulation (see Health Insurance Plan of Greater New York v Allstate Insurance Co., 2007 N.Y.Slip Op 33925[U] [Sup Ct, NY County 2007]; see also Gen. Counsel Opinion 1-28-2008). Aetna argues, however, that it stands in Herrera’s shoes because Herrera assigned her no-fault rights to it.”

(3) “This argument fails for two reasons. First, since Herrera’s health care providers were able to bill and recoup payment from Aetna, an assignment by Herrera of her no-fault rights had already been made, leaving her with no rights to assign to Aetna. Second, by its very language, the no-fault regulation permits only the insured — or providers of health care services by an assignment from the insured — to receive direct no-fault benefits. Because Aetna does not fall under the term “health care provider,” Herrera could not assign her rights to it.”

What is interesting about this about this case is that the Court looks to the strict language of the regulations in coming to the conclusion major medical cannot subrogate against the no-fault carrier.

The way this used to play out (prior to the changes in the GOL and the Second Circuit affirming same) was that the major medical carrier would assert a binding lien against the EIP or even bring a lawsuit against the EIP who, in turn, would bring an action (or third-party action) against the no-fault carrier.  Insofar as the GOL has gutted the subrogation rights in major medical policies, this is a paradigm that does not play out anymore.  And now that there is no direct right of action between the major medical carrier and the no-fault carrier, this whole issue has seemingly disappeared.

SUM game changer

Matter of Government Empls. Ins. Co. v Sherlock, 2016 NY Slip Op 04414 (2d Dept. 2016)

For those of you who practice in the UM and SUM arenas, this case is a total game changer.   I am grateful my name is not attached to the insurance carrier on this case.  I believe I would go into hiding or get lost on a long trial.  Conversely, when I put my Plaintiff hat on, I  realized that I just stepped into a pile of gold.

Here’s my summary:

(1) SUM carrier still gets condition 6 offset based upon benefits paid by third-party motor vehicle insurance tortfeasor carrier;

(2) SUM carrier does not get direct offset for benefits that a non-motor vehicle insurance carrier pays.  Rather, the gross award at arbitration is reduced by the amount of third party benefits collected and the Claimant is entitled to the lesser of this amount or the net SUM benefit available.

Essentially, the Court has stripped away the concept that SUM is a ceiling and that it is not permissible to  obtain benefits greater than that ceiling.  This is a big decision for Claimants who obtain settlements and verdicts in MVAs from tortfeasors other than motor vehicles.

Consider the motor vehicle accident that is caused by the City’ negligence in maintaining the roadway; the errant cow that escaped pasture; the stray bullet that hits your car, etc.


The Pike maneuver

In a recent Personal injury trial,  the defendant stated that plaintiff engaged in a “Pike maneuver” on the S/B Hutchinson at its intersection with the Cross-County Parkway.  When asked what a Pike maneuver was, the witness stated it involved a certain type of impact between a police vehicle and the claimant vehicle, causing the claimant vehicle to go “perpendicular”.   The witness learned the Pike maneuver was from watching Cops.  The jury seemed enamored with the Pike maneuver and this witnesses desire to be a race car driver following his attendance at Miller Motor Sports in Utah.

In case you are wondering why I posted this, I promised Plaintiff on the counterclaim that I would “go public” about the Pike maneuver.  As a man of my word, here it is.

EUO no show not substantiated

Vladenn Med. Supply, Corp. v American Commerce Ins. Co., 2016 NY Slip Op 50775(U)(App. Term 1st Dept. 2016)

“In this regard, we note that while the affirmation of defendant’s attorney described the office procedures for contacting a claimant 48 hours prior to the scheduled EUO to confirm the appearance, it failed to demonstrate personal knowledge of the office procedures when a claimant failed to appear for the EUOs on the scheduled dates (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]). Nor did the affiant state that he was the attorney assigned to conduct the EUOs,”

I have never seen a lawfirm have so many issues proving no-shows of the EUOs THEY scheduled.  It is somewhere between bizarre, embarrassing and perhaps a world where fact is scarier than faction.

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