Marc Habif, D.C./Complete Care Chiropractic v Kemper Auto & Home Ins., 2010 NY Slip Op 20219 (App. Term 2d Dept. 2010)
“[1] plaintiff’s assignor had been involved in an accident on December 12, 2005[;] [2] that plaintiff’s assignor had submitted an application for no-fault benefits on February 1, 2006[;] [3] that plaintiff had provided services between January 3, 2007 and May 14, 2007 [;][4] that plaintiff had established its prima facie case[;][4] and that defendant had not received any no-fault claims on plaintiff’s assignor’s behalf until January 18, 2007[.] “[t]he stipulation is silent as to whether plaintiff’s assignor had received any relevant treatment from any provider, and therefore incurred any relevant expenses, within the one-year period following the accident”
The court ended up reversing the judgment and remanding the matter to the Civil Court for a new trial. The missing link here is that there was no stipulated facts regarding whether Plaintiff Assignor had any relevant treatment within one year from the date of the loss. This case really does not shed any light on the one year rule issue, and really should be a (U) or misc.3d(A) cite.
There is one thing you can take out of this case. This particular issue is best addressed by a summary judgment motion, with an affidavit discussing the absence of any treatment within one year of the date of the loss, based upon a detailed review of the claim file, computer records, etc. Just my opinion.
