Degeneration was not really that
Court ruling shows how plaintiffs can prove degenerative spine conditions became actionable injuries after car accidents, even with pre-existing asymptomatic degeneration.
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December 2015 Articles
26 articles published in December 2015
Was the missed EUO really a miss?
New York court finds that requesting an EUO adjournment before the scheduled date may prevent it from being considered a "no-show," even without mutual rescheduling agreement.
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Depositions granted – First department precedent eschewed
Second Department Appellate Term grants depositions in no-fault cases, overruling district court precedent on discovery timing and procedural requirements.
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Unsettled order fails to dismiss Civil Court action
Court rules that unsettled declaratory judgment order lacks preclusive effect in no-fault insurance litigation when parties' rights aren't clearly declared.
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Failure to comply with PA law
New York court applies Pennsylvania insurance law requiring strict compliance with cancellation notice requirements, including proof of proper mailing address.
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Dismissal on arbitration grounds should be made through CPLR 7503
Court ruling clarifies that arbitration options don't justify dismissal; proper procedure requires CPLR 7503 motion to compel arbitration instead of summary judgment dismissal.
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Mallela limited to Mallela
Court limits Mallela fraud defense in no-fault insurance cases, ruling fee-sharing arrangements don't justify withholding medical payments under New York law.
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Failure of an expert to comply with the subpoena
Court finds expert's failure to produce subpoenaed notes fundamentally unfair, raising questions about record retention obligations for IME doctors.
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Why a substitute IME doctor is not allowed
NY courts reject substitute IME doctors after note of issue filing. Learn why expert witness substitutions face strict scrutiny under discovery rules.
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The Rybak verification affidavit strikes again
Jason Tenenbaum critiques Appellate Term's flawed reasoning in Compas Med. v Praetorian, where court accepted insufficient verification affidavit evidence in no-fault case.
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Motion to restore granted upon erroneous settlement marking
Court grants motion to restore case to trial calendar after erroneous "settled" marking on eCourts website, ruling no enforceable settlement existed.
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DJ victory
Appellate Term ruling demonstrates how declaratory judgment victories can effectively bar subsequent no-fault insurance litigation through res judicata doctrine.
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Proof of no collision
New York court rules that exhaustive affidavits aren't needed to prove no collision occurred in no-fault insurance cases, establishing clear standards for prima facie evidence.
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The $1,000,000 herniation
Million-dollar herniation verdict upheld: Bronx jury awards $1M for cervical discs and lumbar herniations with permanent pain requiring surgery and spinal stimulator.
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Much ado over something?
Court ruling on burden of proof in no-fault medical necessity cases - who must prove surgical necessity when insurers successfully rebut presumptions.
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Windfall interest
Court denies windfall interest to plaintiff who failed to prosecute no-fault insurance case for three years, demonstrating consequences of litigation delays.
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Run of the mill medical necessity case
NY no-fault medical necessity cases show inconsistent court rulings on deficient rebuttal affidavits, highlighting the unpredictable nature of summary judgment motions.
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The professional reliability exclusion
New York court case explains how to establish foundation for professional reliability exception to hearsay rule when expert witnesses rely on out-of-court information.
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3101(d) preclusion
New York courts differ on CPLR 3101(d) violations - First Department focuses on surprise factor when precluding expert testimony served days before trial.
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Corporate v. individual
New York appellate court reinforces the long-standing rule that corporate officers must sign contracts individually to assume personal liability for business obligations.
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SUM Coverage
Learn about SUM (Supplemental Uninsured/Underinsured Motorist) coverage in NY. Essential protection when other drivers lack adequate insurance. Legal case analysis.
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Amended cross-motion (no fee necessary)
New York court ruling clarifies that amended cross-motions don't require additional filing fees under CPLR 8020, providing relief from mounting court costs.
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Records of the treating physician
New York courts allow defendants to rely on treating physician records to demonstrate lack of serious injury, even without certification, in personal injury cases.
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Expert witnesses again
Legal analysis of expert witness qualifications in medical malpractice cases, examining when physicians can testify outside their specialization and foundation requirements.
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EUOs (rescheduling)
New York court clarifies that mutually agreed EUO rescheduling doesn't constitute failure to appear, but subsequent no-shows do under no-fault insurance law.
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Dr. Katz and Justice Hart
Dr. Katz and Justice Hart IME case highlights problems with 3-minute examination versus prescribed 10-20 minutes, mistrial issues, and undisclosed recordings.
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