Devonshire Surgical Facility & Carnegie Hill Orthopedic Servs., P.C. v National Cont. Ins. Co., 2010 NY Slip Op 50042(U)(App. Term 1st Dept. 2010)
“Because plaintiff did not specify any consequential damages (see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of NY, 10 NY3d 187 [2008]) caused by defendant’s failure to pay plaintiffs’ claims for such benefits, the proposed amendment is palpably insufficient as a matter of law”
I guess you can call this is a loss for this plaintiff, but really a big win for the Plaintiffs bar. The Appellate Term, through citing to “Bi-Economy”, has now held that consequential damages are available in the realm of no-fault litigation, if properly pleaded. This is pretty big. All I would say is that Appellate Division precedent does not support the proposition that a party is entitled to consequential damages in no-fault actions nor does the authority of a sister no-fault state (see here). What I find troubling is that the Appellate Term ignored Appellate Division authority directly on point. The Court should have at least acknowledged competing authority with a “c.f.”, “compare” or “but see” cite.
I hope i get the chance to appeal this issue with one of my clients.
If you want the Appellate Division cases on point, they are from the following years: 2006 and 2002. There is a lower court case from 2009. You will have to find these cases the same way I found them. I am not a research service.
2 Responses
Told you so.
Query: NF Insurer denies all ortho benefits including surgical. An appeal is made and a new miscreant IME says “Nope.” Condition worsens to the point where surgery my no longer even be an option. Patient fully disabled. All of the above part of findings of SSI disability hearing.
I think interest and attorney fees are a bunch of B.S. as punishment.