Default judgment vacated
Court vacates default judgment due to insufficient proof under CPLR 3215, requiring personal knowledge affidavits and verified complaints for proper establishment.
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May 2015 Articles
31 articles published in May 2015
Fraudulent procurement defense precluded
NY court rules insurer failed to establish timely denial defense for fraudulent procurement claim, highlighting ongoing debates in no-fault insurance law.
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IME no-show defense folds
A simple spelling error in an IME scheduling letter caused an insurance company's no-show defense to collapse, highlighting the importance of accurate patient identification.
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On the motorcycle and hit again – Is there coverage?
Court rules motorcycle passenger thrown from bike but struck by it again remains "occupying" vehicle for no-fault insurance exclusion purposes in complex accident case.
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A distinction between Alrof-Safeco and reality
Court distinguishes Alrof-Safeco case, finding competent evidence of IME no-show through physician affirmation and scheduler affidavit with personal knowledge of office practices.
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The prima facie case in the First Department and sinking of a disclosure based defense
First Department ruling on prima facie case requirements in no-fault insurance, waiver of assignment defenses, and discovery limitations in provider claims.
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IME letters do not need to be sent to provider
Court clarifies that insurance companies don't need to notify healthcare providers when scheduling Independent Medical Examinations under New York No-Fault law.
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45-day rule in action (or inaction)
Court ruling shows insurance companies must provide detailed affidavits about mail handling procedures to prove 45-day rule violations in no-fault claims disputes.
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Taking a stab at our respected jurist from Staten Island
A New York appellate court reminds judges to maintain judicial dignity after criticizing a Staten Island judge's colorful opinion writing style in a no-fault insurance case.
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Another old fee schedule 20553 reduction case
Court upholds $4,000 to $645.90 fee schedule reduction for CPT code 20553, explaining Ground Rule methodology and potential carrier recoupment analysis.
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Affidavits of no show are insufficient
Court rules affidavits lacking personal knowledge of patient no-shows insufficient to dismiss no-fault insurance claims, requiring stronger evidence standards.
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Boilerplate affidavit mandates triable issue of fact on verification issue
NY appellate court decisions create triable issues of fact with boilerplate affidavits claiming verification materials were mailed to insurance carriers.
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What was the other basis for finding the EUO no shows are invalid?
Court finds EUO no-shows invalid due to unclear circumstances and potential rescheduling, with Civil Court judges granting plaintiff summary judgment in multiple cases.
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Medical necessity motion: the door has creaked open a little bit
New York court requires medical evidence, not just "know it all" affidavits, to challenge IME reports in no-fault medical necessity disputes.
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Objective justification not necessary
New York court rules insurers don't need objective justification for EUO requests under No-Fault Regulation 68, emphasizing compliance importance.
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Were the services billed for?
Court ruling on EUO scheduling letters and verification requests in NY no-fault insurance claims, examining when denials are timely and service billing disputes.
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Complaint stricken on discovery violation – wait until the shoe is on the other foot
Court strikes no-fault complaint for discovery violation despite minimal prejudice to defendant - analysis of CPLR 3126 sanctions and reasonable excuse standards.
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Tenuous Mallela claim denied
Court rejects insurance carrier's argument that chiropractor's 5% billing company fee constitutes ownership under Mallela doctrine in New York no-fault case.
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No right to appeal.
Understanding when appeals are prohibited in New York courts - a crucial reminder about vacated judgments and orders in no-fault insurance cases.
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The dismissal should have been without prejudice
Appellate court corrects trial court's dismissal with prejudice ruling in mortgage foreclosure case, emphasizing proper application of procedural dismissal standards.
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CPLR 308(2) in action – the successful traverse
Court case analysis of CPLR 308(2) service requirements showing successful traverse of default judgment based on improper mailing to wrong address despite valid personal service.
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Progressive cannot prove they mailed documents
Progressive insurance company fails to prove proper mailing of claim denials, court finds insufficient evidence of standard office procedures in NY no-fault case.
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The hospital record admission is admissible (not necessarily as a business record)
Court rules hospital records admissible as party admissions even when not germane to medical treatment, expanding evidence rules beyond business records exception.
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The missing witness charge
New York court ruling on missing witness charges in civil trials - when courts should instruct juries to draw adverse inferences from a party's failure to call expected witnesses.
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Watering down 4518(a) to historic lows
Portfolio Recovery case shows how CPLR 4518(a) business records rule applies to assigned debt collection, allowing self-authenticating statements and affidavits of sale as evidence.
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MVAIC: you must provide coverage
MVAIC coverage dispute: Appellate Division reverses denial for hit-and-run victim who made reasonable efforts to identify driver after realizing injury severity.
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Where venue motion is to be brought
Learn the critical timing and location rules for venue transfer motions in New York courts, including common procedural pitfalls that can derail your case.
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Proofs insufficient under PA law
Pennsylvania law allows insurers to rescind policies for misrepresentation, but innocent third parties retain protection rights despite the rescission.
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Non-Receipt and medical necessity
Court ruling highlights the critical difference between claiming you mailed documents and proving proper mailing procedures in no-fault insurance claims.
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Dismissal for failure to take a default itself failed
Court rules that making a timely default judgment application protects plaintiffs from CPLR 3215(c) dismissal, even if the application ultimately fails.
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Alrof strikes
Court rejects insurance company's EUO no-show defense, citing flawed Alrof precedent that misrepresents examination under oath requirements in no-fault cases.
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