Causation defense rebuffed – notice the subtleties of this case
Court case highlights crucial distinction between reviewing MRI reports versus actual films when defending against causation claims in personal injury cases.
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April 2010 Articles
32 articles published in April 2010
Dismissal with prejudice is a viable disposition in a workers compensation primacy case
Court rules dismissal with prejudice viable in workers compensation primacy cases when plaintiff fails to pursue Workers' Compensation Board determination within 90 days.
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Does this make sense?
New York appellate court ruling reveals surprising disparity between complaint dismissal sanctions and preclusion orders under CPLR 3126, raising constitutional questions.
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Another Pan Medical sighting (or is it citing?)
New York court reinforces Pan Chiropractic standard for medical necessity denials, requiring affirmed peer review reports with factual basis and medical rationale.
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Partner's affirmation demonstrated the "no-show" component of an EUO no-show defense
Court ruling establishes that a law firm partner's affirmation can effectively prove a plaintiff's failure to appear at a scheduled examination under oath.
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Peer doctor's testimony is sufficient to prima facie demonstrate a service's lack of medical necessity
Court finds peer doctor testimony with medical rationale sufficient to prove lack of medical necessity, reversing trial court in no-fault case.
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My thoughts on the DJ action in no-fault jurisprudence
Analysis of AutoOne v Valentine case examining declaratory judgment actions in New York no-fault insurance law, res judicata effects, and SUM benefits claims.
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And this is why computerized range of motion testing is medically necessary – yet, not admissible.
New York courts require computerized range of motion tests to be properly affirmed by someone with personal knowledge to be admissible evidence in serious injury cases.
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From our angry court of the week department
New York appellate court reverses summary judgment denial in credit card debt case, granting dismissal when evidence showed no contractual relationship existed between defendant and creditor.
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Appellate Term approves of the Court giving Defendant a second bite at the apple
Appellate Term allows defendant second opportunity to cure defective summary judgment papers with supplemental physician affidavit in no-fault insurance case.
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It is back: A framed issue hearing for "faxed, copied, stamped or electronically signed" documents
NY appellate court orders framed issue hearing to resolve document signature validity dispute, highlighting ongoing judicial inconsistency in electronic signature cases.
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The Civil Court – in case you did not know – has limited declaratory judgment powers
New York Civil Court has limited declaratory judgment powers for insurance disputes, with jurisdiction restricted to cases where the underlying amount doesn't exceed $25,000.
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Collateral estoppel in the declaratory judgment action does not necessarily apply to the underlying no-fault action
Court rules collateral estoppel from declaratory judgment doesn't bar no-fault claims when plaintiff wasn't named, served, or in privity with defendant.
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Uncertified police report is inadmissible
New York courts remain inconsistent on admissibility of uncertified police reports, with some accepting them under CPLR 4518(a) while others reject them as inadmissible hearsay.
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Oh, yeah, in the alternative, I would have dismissed the complaint on another ground
Federal court dismissal on alternative grounds doesn't bar subsequent state discrimination claims under res judicata doctrine - NY appellate decision analysis.
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A family court non-payment of child support petition spurs an interesting 4518(a) case
Family court case examining CPLR 4518(a) business records rule for medical documents - distinguishing admissible physician office records from inadmissible expert opinions.
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Miss an EBT deadline – have your answer stricken and go directly to inquest
Court strikes defendant's answer for missing EBT deadline, demonstrating how willful discovery violations can lead to severe sanctions under CPLR 3126.
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Expert evidence necessary to address malpractice claim
Medical malpractice claims require expert evidence to establish departure from standard of care and causation. McKenzie v Abrahams case highlights need for comprehensive expert testimony.
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A letter of medical necessity raises a triable issue of fact?
Court ruling examining whether a letter of medical necessity creates triable fact issues in no-fault insurance disputes, questioning summary judgment standards.
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Another case where the Appellate Term seems to hold that a triable issue of fact is raised regarding the compensability of range of motion testing
Appellate Term ruling creates triable issue of fact regarding separate reimbursement for range of motion testing versus inclusion in office visit services.
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CPLR 3212(a) not applicable in the lower courts? Not again.
CPLR 3212(a) 120-day rule applies to lower courts despite conflicting District Court ruling. Analysis of procedural requirements for summary judgment motions.
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Liar as a matter of law
Court sets aside jury verdict as unsupported when plaintiff's testimony was "manifestly untrue" and contradicted by evidence under CPLR 4404(a) standard.
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The failure to stay a compulsory arbitration on jurisdictional grounds precludes appellate review of the improperly arbitrated jurisdictional issue
Court ruling on waiver of jurisdictional challenges in compulsory arbitration when parties fail to seek timely stay within 20-day period under NY Insurance Law.
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A conclusory statement is insufficient to raise an issue of fact that a signature was "faxed" or "electronic"
Court rules conclusory statements insufficient to challenge faxed or electronic signatures in no-fault insurance cases without proper evidence of forgery.
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A poorly drafted affidavit of merit fails to defeat my summary judgment motion
Jason Tenenbaum successfully defeats plaintiff's medical necessity opposition with verbose but inadequate affidavit in Prime Psychological Services case.
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Court of Appeals tells the Appellate Division to adjudicate 5102(d) motions as either "all or nothing"
Court of Appeals rules 5102(d) threshold motions must be decided "all or nothing" - once plaintiff proves any serious injury category, entire motion fails.
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Unintentional spoliation leads to adverse inference charge
New York court rules that unintentional destruction of evidence warrants adverse inference jury instruction when opposing party wasn't notified beforehand.
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To accept or not to accept expert testimony?
New York court ruling on when juries can reject expert testimony in personal injury cases. Guidelines for accepting or disregarding medical expert opinions based on evidence and cross-examination.
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The Appellate Division has held that "Documentary evidence" under CPLR 3211(a)(1) is quite limited
NY Appellate Division defines limited scope of "documentary evidence" under CPLR 3211(a)(1), excluding affidavits, emails, depositions, and medical records.
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Summary judgment denied based upon the failure to plead the "emergency doctrine" as an affirmative defense
Court denies summary judgment when defendant failed to plead emergency doctrine as affirmative defense, highlighting importance of proper pleading requirements.
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Proof of actually mailing an item certified mail RRR is sufficient to prima facie demonstrate proper mailing of an item
Court ruling establishes that testimony of actual certified mail sending creates presumption of proper mailing, even without matching return receipt cards.
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Shady Grove v. Allstate: How Federal Court Access Transformed NY No-Fault Class Actions
How Shady Grove v. Allstate opened federal courts to NY no-fault class actions. Expert analysis of Erie doctrine impact and forum shopping strategies. Call 516-750-0595.
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