How do you overcome the presumption of mailing?
Learn how to overcome mailing presumptions in NY no-fault insurance cases. Expert analysis of court requirements for affidavits and proof standards.
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May 2012 Articles
34 articles published in May 2012
A primer on Florida Law
Analysis of Florida vs New York no-fault insurance laws, focusing on retroactive policy rescission differences and choice of law implications in cross-state accident cases.
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Causation speculative – failure to rebut doctor
Medical experts must address preexisting conditions when establishing causation in personal injury cases, or risk dismissal for speculative testimony.
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Causation speculative
Court rejects medical opinions lacking objective basis for causation in no-fault case with prior injuries. Physicians must address pre-existing conditions to establish accident-related disability.
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10-month initial gap renders causality speculative
A 10-month gap in medical treatment following an auto accident rendered causation claims speculative, highlighting the importance of continuous care documentation.
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Peer hearsay and electronic signatures
Appellate court rules on peer review requirements and electronic signature validity in no-fault insurance disputes, clarifying evidence standards for medical necessity challenges.
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Supreme Court venue
Court rules on venue change rights when defendant files amended answer with additional affirmative defenses in no-fault insurance case.
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Deposition transcript v. errata sheet
When deposition testimony conflicts with errata sheet corrections, courts must deny summary judgment motions due to unresolved credibility issues requiring trial resolution.
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Assignment valid during unresolved lawsuit
Court rules that valid assignment of mortgage note after lawsuit commencement creates proper basis for plaintiff substitution and caption amendment under CPLR rules.
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90/180 claim has serious consequences despite 5102(d) dismissal of permanent consequential and significan limitation
New York no-fault law creates paradoxical situations where courts dismiss serious injury claims yet allow full damages under 90/180 day categories, highlighting systemic inconsistencies.
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Funny joke – but not sufficient for recusal
A New York appellate court ruled that a judge's joke about seeking employment with opposing counsel didn't warrant recusal, distinguishing it from serious conflicts of interest.
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May 2309(c) finally rest in peace.
New York's Second Department clarifies that missing CPLR 2309(c) certificates of conformity for out-of-state affidavits are not fatal defects in litigation.
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Mailing not proven through witness that was not present when items was deposited into the trusty USPS
Court rules that witness who wasn't present during mailing cannot prove proper service, highlighting importance of firsthand testimony in no-fault cases.
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The failure to respond to an EUO letter non-suits another DME provider
DME provider loses case after failing to respond to EUO letter, with court ruling that non-compliance permits denial of all claims, not just pending ones.
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IME no-show defense defeated based upon affidavit issue – prima facie denied based upon a denial which Defendant did not prove was mailed
IME no-show defense defeated due to affidavit gap - court denies prima facie case where defendant failed to prove mailing of denial for one cause of action
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Acupuncture fee schedule defense upheld
New York court upholds insurance company's denial of acupuncture claims exceeding workers' compensation fee schedule limits in Raz Acupuncture v New S. Ins. Co.
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The failure to specifically deny the lack of appearence at an IMEs proves fatal
Appeals court confirms that failing to specifically deny a patient's IME no-show in opposition papers proves fatal to a medical provider's no-fault insurance claim.
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Subsequent MSJ is okay
New York courts may allow subsequent summary judgment motions when substantively valid and serving justice, despite general discouragement of multiple motions.
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Perl? Where are you? Not over here…
Court ruling on 13% range of motion loss not qualifying as serious injury under NY no-fault law, requiring radiologist report rebuttals in personal injury cases.
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Non-compulsory arbitration award vacated
Court vacates arbitration award when plaintiff denied basic procedural rights including notice, opportunity to be heard, and to present evidence under CPLR Article 75.
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Mailing case – sent but never received
New York court ruling on proving non-receipt of mailed documents in no-fault insurance cases, establishing standards for rebutting mailing presumptions.
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Service of papers in accordance with the CPLR should be considered even if not in accordance with the Kings County Civil Court briefing schedules
Kings County Civil Court case shows CPLR service rules should prevail over local briefing schedules when no prejudice exists in no-fault insurance litigation.
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Again – prima facie
Court ruling demonstrates how healthcare providers must prove insurance companies failed to timely pay or properly deny no-fault claims to establish prima facie case.
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The policy does not need to be included in the motion papers
Court rules insurance companies don't need to include policy documents in motion papers when seeking examination under oath in no-fault cases.
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Affidavit deemed insufficient under a Pan Chiro analysis
Court finds physician's affidavit insufficient under Pan Chiro standards, raising questions about evolving requirements for medical necessity evidence in no-fault cases.
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Court enforces summary judgment upon failure to make a prompt application to the comp. board
Court enforces summary judgment when medical provider fails to timely apply to Workers' Compensation Board in New York no-fault insurance case
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3404 and 3216 collide – well somewhat
Court ruling on CPLR 3404 vs 3216 dismissal motions in no-fault insurance breach of contract case, discussing procedural requirements and litigation delays.
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Denial and EOB is sufficient to preserve fee schedule defense
New York court rules that denial letters with EOB forms adequately preserve fee schedule defenses in no-fault insurance disputes, even without explicit notice requirements.
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Final order of preclusion became automatic – no need to move for one
Court rules conditional preclusion order becomes automatic upon non-compliance, but plaintiff still must prove prima facie case for summary judgment
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Refused to blow and kept his license
Rare DWI refusal case where driver kept license despite refusing breathalyzer test - field sobriety video contradicted officer's impairment observations in NY court
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Permanent consequential and Significant Limitation non-suited despite Perl
Third Department case analysis where permanent consequential and significant limitation claims failed despite Perl precedent due to inadequate medical proof and causation issues.
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90/180 discussion – interpretation of Perl.
Crawford-Reese v Woodard case analysis: 90/180 threshold motion requirements, medical evidence standards, and Perl interpretation for NY serious injury law.
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Right to confrontation trumps HIPPA
New York Court of Appeals case examining how Sixth Amendment confrontation rights can override HIPAA privacy protections in criminal proceedings involving hospital records.
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4518(a) deals with certification?
Court ruling clarifies CPLR 4518(a) certification requirements for police accident reports as business records in New York personal injury cases.
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