The Appellate Division weighs in on the mailing paradigm
Appellate Division ruling on mailing paradigm requirements for DMV license suspension notices, addressing witness testimony standards and procedural evidence rules.
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December 2010 Articles
20 articles published in December 2010
Very interesting discussion involving a nurse’s standard of care in the medical malpractice realm
Appellate Division ruling on nurse malpractice expert qualifications - home infusion therapy standard of care requires specialized experience for competent testimony.
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Standing in a direct first party case is waivable
Court rules standing defense waivable in no-fault insurance cases when not properly raised in answer or pre-answer motion, emphasizing proper pleading procedures.
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It was a good run at the cards
Appellate Term ruling on medical necessity motions in no-fault insurance cases, examining hearsay rules and evidence standards for Nassau County plaintiff firms.
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Prior rulings on acupuncture fee schedule and proof needed to oppose a medical necessity motion stand
New York appellate court clarifies acupuncture billing rates, medical necessity proof standards, and scope of practice in no-fault insurance disputes.
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Proof insufficient to show bills were paid: motion denied
Court ruling establishes important precedent on burden of proof for insurance companies claiming medical bills were already paid in no-fault cases.
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Guidance on how to defeat a lack of causation motion regarding injury to a knee
Learn how to defeat lack of causation motions in knee injury cases. Expert guidance on establishing causal relationship between accidents and injuries in NY.
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An unproven Mallela defense will cost State Wide millions
NY No-Fault legal analysis: Mallela defense standards, burden of proof & pending Rabiner claims. Insurance case law update from State Farm v. Mallela
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The Appellate Division, Second Department has again held that a prima facie case involves a business record foundation for the entry of the bills into evidence
Appellate Division Second Department rules on prima facie case requirements for no-fault insurance claims, emphasizing business record foundations for medical bills.
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The EIP does NOT need to be notified when the carrier is seeking verification from a provider of medical services
NY no-fault insurance verification requests don't require EIP notification when seeking info from medical providers, per Triangle R v Clarendon case analysis.
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An exercise in absurdity
New York no-fault insurance case analysis examining peer review evidence requirements and stipulation breaches in medical necessity defenses.
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A computer database is a business record
New York Appellate Division confirms computer databases qualify as business records, allowing printouts to be admitted as evidence in court proceedings.
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Punch drunk off CPLR 3212(g)
Analysis of CPLR 3212(g) motion practice and trial issue limitations in New York no-fault insurance litigation, examining Quality Med. Healthcare case precedent.
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Policy limit defense is preserved when payments are compelled that might bring the payments over the policy limit
Court ruling allows insurers to preserve policy limit defenses even when compelled payments exceed coverage limits, protecting exhaustion claims in no-fault cases.
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Word of the day: Prejudice
Court ruling adds "prejudice" test to defective denial analysis in New York no-fault PIP litigation, making denial validity determinations more complex.
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An interesting article from David Barshay in today’s law journal – an interesting read
Attorney Jason Tenenbaum highlights David Barshay's important analysis of New York's new fee schedule changes and their impact on no-fault insurance law.
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Ins Law 5109 and the failure to promulgate regulations thereto is not fatal to a Mallela defense
First Department rejects argument that lack of regulations under Insurance Law 5109 prevents Mallela defenses, finding such a result would be absurd and contrary to fraud prevention.
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Spell it out in the affidavit
Court ruling highlights that attorney affirmations without personal knowledge lack probative value in no-fault insurance verification disputes.
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And now the Ninth and Tenth follow lockstep with the Second, Eleventh and Thirteenth
Court decisions show consistent pattern: medical providers failing to submit proper affidavits of merit in medical necessity challenges will almost certainly lose at appellate level.
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Affidavit of doctor is sufficient to demonstrate non appearence at the IMEs
Court confirms doctor's affidavit is sufficient proof of IME non-appearance when it includes proper address details from scheduling letters.
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