Preliminary injunction denied

American Commerce Ins. Co. v Francois, 2015 NY Slip Op 01594 (2d Dept. 2015)

Okay Oleg and Damin.  Good job.  Are you happy?  You (Oleg) claim that I never praise you when you win, so here you go.

“The plaintiff sought to temporarily restrain and preliminarily enjoin all no-fault actions arising from a car accident in which its insured allegedly was a driver. The plaintiff failed to establish a likelihood of success on the merits of its cause of action (see Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612; Matter of Related Props., Inc. v Town Bd. of Town/Vil. of Harrison, 22 AD3d 587, 590; Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 349-350), failed to demonstrate that it would suffer any imminent and nonspeculative harm in the absence of the requested injunctive relief (see County of Suffolk v Givens, 106 AD3d 943; Golden v Steam Heat, 216 AD2d 440, 442), and failed to demonstrate that any injuries it would suffer would not be compensable by money damages (see Rowland v Dushin, 82 AD3d 738; EdCia Corp. v McCormack, 44 AD3d 991, 994; Matter of Gandolfo v White, 224 AD2d 526, 528). The plaintiff also failed to establish that the equities balance in its favor (see McLaughlin, Piven, Vogel v Nolan & Co., 114 AD2d 165, 174). Accordingly, the Supreme Court properly denied those branches of the plaintiff’s motion which sought a temporary restraining order and a preliminary injunction.”

Wish I knew why this happened?

Ime cut off succeeds

V.S. Care Acupuncture PC v MVAIC, 2015 NY Slip Op 50350(U)(App. Term 1st Dept. 2015)

Defendant MVAIC made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on a sworn independent medical examination (IME) report of its examining acupuncturist, which set forth a factual basis and medical rationale for his stated conclusion that the assignor’s injuries were resolved and that there was no need for further acupuncture treatment (see Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50643[U] [App Term, 1st Dept 2013]). Contrary to the conclusion reached below, defendant was not required to provide notice of the scheduled IME to plaintiff provider (see 11 NYCRR 65-1.1; 65-3.5 [b],[c]; 65-3.6[b];”

I am partial to this case because of Utica v. Interboro.  Shout out to myself.  I also sense an application of the bolded language that will find its way in a brief to the Appellate Division, First Department eventually.

Consolidated Attorney fee

EMA Acupuncture P.C. v Allstate Ins. Co., 2015 NY Slip Op 50348(U)(App. Term 1st Dept. 2015)

Good job James F. Sullivan and crew.

We sustain so much of the order under review as limited the amount of any recovery of attorneys’ fees to the sum of $850, the maximum allowable pursuant to Insurance Department Regulations [11 NYCRR] § 65-4.6(e). Since this provision provides that attorneys’ fees in a no-fault action are to be calculated based on the “aggregate of all bills for each insured” disputed in any action, up to a maximum of $850 (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]), the $850 limit was properly applied to the claims at issue in this consolidated action, all of which involve the same parties and assignor, and arise from the same accident.”

So assume that you have a typical multisuit involving three providers and one assignor.  Can you now make the argument that the attorney fee should be on an aggregate basis?  Therefore, $60 minimum and $850 maximum regardless of the amount of Assignee medical providers?  With the new-new-new regs, I am unsure this will matter as the minimum has been removed and you need just north of $8100 in combined principle and interest to reach the attorney fee ceiling.  Maybe with consolidated NJ  surgery cases this can be relevant?


No-Show. Was it timely?

Acupuncture Solutions, P.C. v Lumbermans Mut. Cas. Co., 2015 NY Slip Op 50346(U)(App. Term 1st Dept. 2015)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear”

So here is the question.  Did the “timely and properly mail[ing] [of] the notices” include gearing the mailings to the receipt of Plaintiff’s bill?

I think the answer is no, as the basic construct of a first department no-show motion would not call for same.  But I need to read the record before I can give an answer.

Think your insured is not on the up and up? Well, don’t cash their premium check after you cancel their policy

Sensational Serv., Inc. v American Tr. Ins. Co., 2015 NY Slip Op 30343(U)

Short term monetary gain ($166,505.79) or long term common sense?  Read.

Interesting discussion as to causation

Campbell v Fischetti, 2015 NY Slip Op 01898 (1st Dept. 2015)

Furthermore, an X ray taken on the accident date revealed that plaintiff had sustained only a contusion, and had chronic degenerative changes with severe medial joint space narrowing.

In opposition, plaintiff failed to raise a triable issue of fact. Her orthopedic surgeon diagnosed her with left knee osteoarthritis before and after surgery, and provided “no objective basis or reason, other than the history provided by plaintiff,” in support of his opinion that the accident was causally related to the knee surgery nine months later (see Farmerat 562 [internal quotation marks omitted]). Moreover, plaintiff failed to provide evidence of any injuries that were different from her preexisting arthritic condition (see Kamara v Ajlan, 107 AD3d 575, 576 [1st Dept 2013]).”

Misrepresentation based upon failure to serve last known address

Li Xian v Tat Lee Supplies Co., Inc., 2015 NY Slip Op 01751 (1st Dept. 2015)

“Vacatur was also warranted pursuant to CPLR 5015(a)(3), since the default judgment was obtained through misrepresentation or misconduct. Defendant demonstrated that plaintiffs’ motion for a default judgment was granted, in part, based on plaintiffs’ counsel’s incorrect representation that defendant’s old address was the “only known” address for service of the additional summons required by CPLR 3215(g)(4), when, in fact, plaintiffs’ sublease provided another address for service of legal notices on defendant.”

This is a new twist on CPLR 5015(a)(3) jurisprudence.

Why follow the law?

HSBC Bank USA, N.A. v Simmons, 2015 NY Slip Op 01609 (2d Dept. 2015)

“Since Justice Arthur Schack continues to ignore this Court’s precedent, as articulated in Wells Fargo Bank Minn., N.A. v Mastropaolo (42 AD3d 239), holding that the defense of lack of standing is waived if not raised by the defendant in an answer or pre-answer motion to dismiss (see Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566; HSBC Bank USA, N.A. v Taher, 104 AD3d at 817; U.S. Bank, N.A. v Emmanuel, 83 AD3d at 1048-1049; cf. Bank of N.Y. v Cepeda, 120 AD3d 451, 452; Bank of N.Y. v Mulligan, 119 AD3d 716, 716; Wells Fargo Bank, N.A. v Gioia, 114 AD3d at 767), we deem it appropriate to remit the matter to the Supreme Court, Kings County, for further proceedings on the complaint before a different Justice.”

What happened here?

Carlin v Hereford Ins. Co., 2015 NY Slip Op 01601 (2d Dept. 2015)

(1) The defendant’s contention that, in light of the nature of the underlying accident, the plaintiff was not a covered person under the no-fault provisions of the subject automobile insurance policy is not properly before this Court, since the defendant is raising it for the first time on appeal (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043; KPSD Mineola, Inc. v Jahn, 57 AD3d 853; Triantafillopoulos v Sala Corp., 39 AD3d 740). Moreover, this defense does not raise a pure question of law apparent on the face of the record that could not have been avoided if raised at the proper juncture (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043; KPSD Mineola, Inc. v Jahn, 57 AD3d 853; Triantafillopoulos v Sala Corp., 39 AD3d 740). Accordingly, we do not disturb so much of the judgment as, in effect, awarded the plaintiff $50,000 in unpaid basic no-fault benefits.

(2) The automobile insurance policy issued by the defendant also provided optional additional personal injury protection, with limits of $150,000, for covered persons who sustained extended economic loss as a consequence of an automobile accident. This coverage is commonly known as excess no-fault coverage. The defendant failed to preserve for appellate review its contention that the plaintiff was ineligible for coverage under the additional personal injury protection provisions of the subject policy since, at trial, it made no reference to the governing insurance regulations, nor did it request that the Supreme Court take judicial notice thereof (see CPLR 4511[b]; cf. Matter of Damian M., 41 AD3d 600; Matter of Olympia Victoria R., 261 AD2d 191). The defendant’s contention on appeal that the plaintiff was ineligible for excess no-fault coverage does not raise a pure question of law that could not have been avoided if raised at the proper juncture

(3) Interest is simple, not compounded.

This case is somewhat of a puzzle to me.  I suspect the decedent was a pedestrian and there was an issue as to whether the vehicle made contact with her.  Pedestrians are not entitled to APIP, and the argument of lack of coverage leads me to believe there was an issue of lack of contact.  Just a guess.

Standing not expressly pleaded

Bank of Am., N.A. v Paulsen, 2015 NY Slip Op 01597 (2d Dept. 2015)

“Here, contrary to the conclusion reached by the Supreme Court, the appellant did not waive the issue of standing. Although the appellant’s answer did not raise standing as a separate defense, a fair reading of his answer reveals that it contained language which denied that the plaintiff was the owner and holder of the note and mortgage being foreclosed. Under such circumstances, the appellant was not required to expressly plead lack of standing as a defense”

This is interesting.  The Court held, in essence, that the denial of certain averments in the complaint was sufficient to raise the affirmative defense of lack of standing.  So, the more artfully a complaint is pleaded, the better the chance of a de-facto standing defense being proffered.

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March 2015
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