It did not work the second time around

Perhaps the only thing worse than leaving your fate in the hands of the Civil Court is to leave your fate at the mercy of the Appellate Division.  I say this not in a disparaging way; it just bespeaks the randomness of the decisions that come from these Courts.

Those who have been in this business awhile (>10 years) can tell you that cases you didn’t think you should win you won, and those cases that you should have won, you did not win.

This occurred to me in the last month.  An appeal that I perfected due to frustration and without much legal precedent was a victory for me. (Koyachman v Paige Mgt. & Consulting, LLC, 121 A.D.3d 951 [2d Dept. 2014]).  I was beyond shocked to have won Koyachman.  The failure to serve an OSC as directed in the order mandates the denial; yet, there is now a Koyachman exception.

Yesterday, the court despite granting similar relief to Plaintiff on similar affidavits in Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102 (2d Dept. 2009), denied similar relief in Interboro v. Johnson.   In both of these cases, the insurance carrier solely relied upon a radiological review.  Compare Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co.. 28 Misc.3d 136(A)(App. Term 2d Dept. 2010)(finding prima facie entitlement to summary judgment on causation based upon radiological review)

Compare this to  Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc.3d 135(A)(App. Term 1st Dept. 2013), where the carrier relied upon a radi0logical review and a peer review to dispute the causal relationship between the accident the treatment, and the Court dismissed the complaint.

A similar instance of this disconnection between cases with similar records  is the Appellate Term holding that a low-impact study cannot disprove causation (Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.. 17 Misc.3d 97 [App. Term 1st Dept. 2007]), while another Appellate Term held that the low impact study was not only sufficient to raise an issue of fact; but was sufficient to prima facie prove lack of causation.   Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 34 Misc.3d 153(A)(App. Term 2d Dept. 2012)

Or, how about the Appellate Term which held a conclusory affidavit was insufficient to defeat a medical necessity motion (Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc.3d 139[A][App. Term 1st Dept. 2013]), yet allowed the same type of conclusory affidavit to defeat the motion.    Arnica Acupuncture P.C. v Interboro Ins. Co., 43 Misc.3d 130(A)(App. Term 1st Dept. 2014)

So Johnson is another example of placing your fate with the Appellate Division and hoping for the best.