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Category: Procedural Issues

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Procedural Issues (203)

Medical Necessity (184)

Additional Verification (95)

IME issues (161)

The appellate term first department's take on 2309

January 15, 2010 1 Comment

“Motion granted and complaint dismissed on the condition that defendant, within 60 days of service upon it of a copy of this order with notice of

The failings of the former serve and file system – again

January 13, 2010 No Comments

Globe Med. Care O.L.P.C. v Travelers Ins. Co., 2010 NY Slip Op 50020(U)(App. Term 1st Dept. 2010) “Civil Court erred in dismissing this action by plaintiff

2309 yet again – from the Appellate Division, Second Department

January 10, 2010 No Comments

Betz v Daniel Conti, Inc., 2010 NY Slip Op 00086 (2d Dept. 2010) “Although the affidavit of the defendants’ expert, which was notarized outside the state,

Plead it or lose

January 5, 2010 No Comments

What happens is that once a month, the Fourth Department will slam the Most Recent Decision website with about 100 cases. As a practitioner, blogger and

CPLR 2309 and the ability to submit new evidence in a reply

January 1, 2010 2 Comments

The Courts seem to be all over the place with the certificate of conformity requirement for out of state affidavits found in CPLR 2309. This statute

Proving standing without an assignment?

January 1, 2010 No Comments

Since proof of standing is generally not an affirmative part of a no-fault claimant’s prima facie case, this case from the First Department might be of

A second pre-answer motion to dismiss is alright if it is the first one to be decided on its merits

December 23, 2009 No Comments

Chester Med. Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 52598(U)(App. Term 2d Dept. 2009) “On November 21, 2006, plaintiff, a

The failure to place evidence in proper form cannot be cured in a "supplemental opposition"

December 20, 2009 No Comments

“The magnetic resonance imaging (hereinafter the MRI) report of Dr. Steven Brownstein concerning McMullin’s lumbar spine, the MRI report of Dr. Dennis Rossi concerning McMullin’s cervical

Renewal under certain circumstances may be granted to correct an improper affirmation

December 5, 2009 No Comments

What happens if you draft an affirmation that is missing the magical “2106” language and the defect is properly objected to? You lose. Can you move

CPLR 3404 and the untimely motion to restore that was (in effect) deemed timely

November 12, 2009 No Comments

CPLR 3404 was recently discussed in Kahgan v Alwi, 2009 NY Slip Op 08183 (2 Dept. 2009), as demonstrated below: “The plaintiff filed her note of

Can a Declaration of Non-Coverage that Arises from a Co-Defendant's Default be Considered Collateral Estoppel Against the Appearing and Answering Defendant?

November 1, 2009 No Comments

State Farm Ins. Co., v. Frias, 2009 NY Slip Op 07825 (2d Dept. 2009) Dave Gottlieb at No-Fault Paradise posted on this case, and offered his

Laches may prove fatal to opposing a summary judgment motion based upon CPLR 3212 (f)

October 30, 2009 No Comments

Stoian v. Reed, 2009 NY Slip Op 07713 (3d Dept. 2009) “We also reject plaintiffs’ assertion that Supreme Court abused its discretion in failing to grant

2309 – again

August 14, 2009 No Comments

Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 2009 NY Slip Op 51629(U)(App. Term 2d Dept. 2009) “The affidavits proffered by defendant in support of

What do CPLR § 2309 and CPLR § 2106 have in common?

July 8, 2009 No Comments

The answer, unfortunately, is that too many practitioners fail to understand how to utilize and work with these statutes. It seems that in the field of

Priority of payment disputes must be adjudicated through Ins. Law 5105 intercompany arbitration

July 1, 2009 No Comments

The law is simple: Disputes involving whether an insurance carrier in a no-fault coverage dispute is primary, secondary, or tertiary must be resolved through intercompany arbitration.

Nunc pro tunc under the former serve and file regime

June 18, 2009 No Comments

J.R. Dugo, D.C., P.C. v New York Cent. Mut. Ins. Co., 2009 NY Slip Op 29261 (App. Term 2d Dept. 2009) I suspect that if this

Motion to Reargue – the 30 day period is not absolute

June 7, 2009 No Comments

From a procedural standpoint, a question that has arisen is whether a motion seeking leave to reargue or, in certain cases, leave to renew is timely

Cornell

May 29, 2009 No Comments

Cornell Med., P.C. v Mercury Cas. Co. 2009 NY Slip Op 29228 (App. Term 2d Dept. 2009) This case is extremely complicated. There are two points

Stricken v. dismissed

May 29, 2009 No Comments

V.S. Med. Servs., P.C. v Travelers Ins. Co. 2009 NY Slip Op 29226 (App. Term 2d Dept. 2009) I am not sure why this case did

A court system not so uniform

May 16, 2009 No Comments

There was an interesting decision that came out from The Long Beach City Court. Judge Smolkin, one of the two City Court Judges out here, wrote

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