Parkway Imaging & Diagnostic, P.C. v Clarendon Natl. Ins. Co., 2011 NY Slip Op 51853(U)(App. Term 2d Dept. 2011).
Triangle R, Inc. v Clarendon Natl. Ins. Co.,2011 NY Slip Op 51854(U)(App. Term 2d Dept. 2011)
Proscan Imaging Buffalo v Clarendon Natl. Ins. Co., 2011 NY Slip Op 51855(U)(App. Term 2d Dept. 2011)
Padova Physical Rehab. Medicine, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 51862(U)(App. Term 2d Dept. 2011).
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6 Responses
This is further proof that the Appellate Term, Second Department is not following Unitrin and is requiring a timely denial. The good news for the insurers is that the Court is finding that the Affidavits of mailing are sufficient for both the IME scheduling letters and denials. In addition, the Court is accepting the doctor’s affidavits of non-appearance without requiring ridiculous requirements as to how the doctor0 know about the non-appearances. The amazing thing is that these cases are still coming up on appeal. You would think that the plaintiffs’ bar would learn by now and stop bringing these appeals or, at the very least, the Civil Court judges would follow the law. The same thing goes for the cases where an insurer makes a motion for summary judgment based upon a peer review or IME. It should be clear to the plaintiff’s bar and the lower courts that in order to defeat these motions, the plaintiff must produce a doctor’s affidavit.
The former is correct. However, I suspect the 2nd Dept will be called into directly address Unitrin. Remember, Westchester v. Lincoln was reviewed in the defensive posture by the carrier. Unitrin was an offensive action. The Appellate Term, Second, has only heard appeals in the defensive posture. While they actually do have limited DJ jurisdiction, you would have to be off your rocker to bring such an action in Civil Court as an insurer.
I believe the rules are slightly different in the offensive posture. I am not going to go through why I believe that, because I am not going to spend hours on here sparring.
Regarding your second point, APlus Mercury and Pomona Geico dispel your notion. Also, Justice Steinhart’s dissent (2-1 plurality decision) awhile ago and my blunder in Hillcrest v. State Farm (2-1 plurality decision), would tend to give credence to the Plaintiff’s opposing without an affidavit of merit. However, in two supply cases, we saw an App Term, First Dept, shy away from their triable issue of fact precedent.
APlus Mercury and Pomona Geico are the exception not the rule.
Mitch, if I were to appeal 30 unrebutted medical necessity cases in the first department, I would lose 50% of them. This makes sense.
By analogy, how many unrebutted 5102(d) motions are lost because the movant failed to establish its prima facie prove a lack of serious injury?
Good seeing you in court Mitch. I was hoping to see Kurt also – but there is a rumor that he in hiding…
I started that rumor. But maybe I am hiding ….. or just lazy. My partner is down in Court more and I am doing arbs.