Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50473(U)
“In this action to recover assigned first-party no-fault benefits, defendant’s documentary submissions established prima facie, that it duly mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). Plaintiff’s contention that defendant failed to prove the mailing of the IME notices to the assignor’s attorney is unavailing absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim.”
It used to be “you cannot prove you mailed it.” Now, the new mantra is that the verification requeat/EUO request/IME request/ etc. was unreasonable. In fact, if you look at the IME no show decisions that are being decided, the appellate courts are now including as part of their standard order language that a triable issue of fact was not raised because Plaintiff failed to demonstrate the lack of reasonableness of the demand. I think this will only become more a hot button issue in light of a Unitrin
And how about the part regarding cc’ing counsel. The standard now is that the provider must provide competent evidence that the assignor had counsel.
3 Responses
Judge Cruz got reversed???? I think I see a tear emerging from under Lady Justice’s blindfold.
[Edited for content]
Judge Cruz applies the rules of evidence from the Civil Ct. Bench. Such things as the hearsay doctrine are a bain to most no fault lawyers who passed evidence only because it is impossible to flunk out of law school — bad for business.
Indeed as becoming a Judge requires no legal acumen — just disgusting back room politicking — it is great to see a Judge that knows law as well as Judge Cruz.
I remember calling for a ruling during a deposition. I asked the witness whether he had ever been convicted of a crime. His attorney objected. I called for a ruling. The Judge said that the witness had to answer the question. The Judge explained that past criminal acts were relevant because they showed propensity.
I tried to argue with the Judge even though I won the ruling that past convictions would be relevant not to show propensity but would only go to witness credibility. In fact you could only use it to impeach. Not as evidence in chief. He did not understand that. Supreme Court.
On a good note all cannot be bad. In between work this weekend it was opening day in Flag Football this Saturday. In the 6-8 age group the coach QBs the first 4 games. On the opening play of the opening game of the season I hit my son with a 50 yard catch and run touch down pass. It was excellent and shows the world what true Americans the Zuppa Family are. (We won the opener 14-0)
Tough folks those Zuppas.
I think I’ve seen Lady Justice (edited for contented) by some of the law I’ve seen as of late.