DJ victory from the First Department

Hertz Corp. v Active Care Med. Supply Corp., 2015 NY Slip Op 00212 (1st Dept. 2015)

“In this action seeking a declaration that Hertz is not required to reimburse defendants for treatment they allegedly provided in connection with an automobile accident, plaintiff submitted sufficient proof of mailing correspondence to defendants regarding the scheduling of examinations under oath (EUO) on two separate occasions (Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]) and defendants’ failure to appear. Although plaintiff’s counsel’s affidavit did not state that he personally mailed the particular notices of the EUOs, or describe his office’s practice and procedure for mailing such notices (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2d Dept 2001]), objective proof of mailing (see Matter of Szaro v New York State Div. of Hous. & Community Renewal, 13 AD3d 93, 94 [1st Dept 2004]) was provided by the EUO notices, which contained the same certified mail number in their captions that was reflected on the certified mail return receipts and the United States Postal Service “Track & Confirm” report (cf. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 548 [2d Dept 2006]).

The attorney who was assigned to the file and who would have conducted the EUO if the defendants had appeared certainly was in a position to state that the defendants did not confirm their appearances as directed in the notice and did not otherwise appear in his office on the date indicated.

The No-Fault Regulation contains explicit language in 11 NYCRR 65-1.1 that there shall be no liability on the part of the no-fault insurer if there has not been full compliance with the conditions precedent to coverage. Thus, defendants’ failure to attend the EUOs is a violation of a condition precedent to coverage that vitiates the policy.”

If you compare this to the Appellate Term matter of  Optimal Well-Being Chiropractic, P.C. v Ameriprise Auto & Home Ins.,2014 NY Slip Op 51858(U)(App. Term 2d Dept 2014), you will see how a similar no-show affidavit yielded a different result.

It is also noteworthy that a certified mail letter with a green card or track and confirm stating the parcel was received is sufficient to prima facie prove mailing san affidavits.  This is helpful when the affidavits of mailing are not up to the task.  This Court is taking a hard line on these cases and a particular provider’s firm who keeps trying to push the envelope in a Court where they are not welcome.




The missing EMG/NCV undermined the expert’s analysis

Crewe v Pisanova, 2015 NY Slip Op 00041 (4th Dept. 2015)

(on to permanent consequential/significan limitation)

“Defendants’ expert opined that plaintiff did not have a serious injury within the meaning of those two categories, based upon his examination of plaintiff and his review of plaintiff’s medical records. The expert concluded, inter alia, that plaintiff did not sustain a serious injury because she did not have radicular pain. In addition, however, defendants submitted an electromyography study of plaintiff in support of their motion, indicating that plaintiff suffered from “moderate chronic left C5-6 radiculopathy.” Further, when defendants’ expert reviewed plaintiff’s medical history, it was admittedly missing the first page of that electromyography study. That is the page containing the conclusion that plaintiff has “moderate . . . radiculopathy,” and we thus conclude that the basis for the expert’s conclusion was thereby undermined.”

(on to 90/180)

SLOPPY EBT:  ”To qualify as a serious injury under the 90/180[-day] category, there must be objective evidence of a medically determined injury or impairment of a non-permanent nature . . . as well as evidence that plaintiff’s activities were curtailed to a great extent” (Zeigler v Ramadhan, 5 AD3d 1080, 1081 [internal quotation marks omitted]; see Licari v Elliott, 57 NY2d 230, 236). Here, defendants rely on plaintiff’s deposition testimony addressing how her activities were curtailed as of the time of the deposition, over a year after the accident, rather than how they were curtailed during the relevant statutory period….”

More than $50,000 in basic economic loss (recovery limitation): “[P]laintiff[] correctly contend[s] that [she] need not await the full $50,000 payout for basic economic losses . . . before making a claim under Insurance Law § 5102 (a) for those additional economic losses that exceed the basic economic loss threshold” (Wilson v Colosimo, 101 AD3d 1765, 1767; see generally Montgomery v Daniels, 38 NY2d 41, 47-48; Colvin v Slawoniewski, 15 AD3d 900, 900; Barnes v Kociszewski, 4 AD3d 824, 825; Watkins v Bank of Castile, 172 AD2d 1061, 1062). Here, the three-year period in which plaintiff may accrue economic loss in excess of basic economic loss, as set forth in Insurance Law § 5102 (a) (2), commenced on the date of the accident and had not yet elapsed when the motion was decided. Therefore, summary judgment on this ground was premature.”


Lack of medical necessity defense upheld

Five Boro Med. Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51888(U)(App. Term 1st Dept. 2014)

“Plaintiff’s opposing submission, consisting of an attorney’s affirmation unaccompanied by any medical evidence or other competent proof, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). Plaintiff’s objections to the peer review doctor’s qualifications “go to the weight and not the admissibility of her opinion” (Solano v Ronak Med. Care, 114 AD3d 592 [2014]).”

Certain judges often play the qualification card.  It works when dealing with nurses and fee schedule coders.  It does not work with peer review doctors, unless the service being reviewed is of a sub-specialty that the Geffner rule would apply.

Another acupuncture fee schedule challenge fails

Health Needles Acupuncture, P.C. v GEICO Ins. Co., 2014 NY Slip Op 51864(U)(App. Term 2d Dept. 2014)

“On appeal, plaintiff argues that defendant failed to establish that its fee schedule reductions were proper. We disagree and find that defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors”

Proof insufficient to show mailing

Faith Acupuncture, P.C. v Maya Assur. Co., 2014 NY Slip Op 51863(U)(App. Term 2d Dept, 2014)

“Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed ”

This is something you do not see too often nowadays: a court stating that the IME letters were not mailed.  Most reversals or issues seems to involve the proof of no show.  Of course, this only invites a trial where the vendor will have to prove that the letters were mailed.

Interest and attorney fee

Optimal Well-Being Chiropractic, P.C. v MVAIC, 2014 NY Slip Op 51861(U)(App. Term 2d Dept. 2014)

“The judgment that was subsequently entered pursuant to the order entered April 20, 2012 awarded plaintiff, among other things, interest and attorneys’ fees. The interest awarded was calculated at the rate of two percent per month from July 6, 2010 through the date of entry of the judgment, July 16, 2012. However, these dates do not comport with the dates to be used for the calculation of interest as set forth in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (12 NY3d 217 [2009]) and East Acupuncture, P.C. v Allstate Ins. Co. (61 AD3d 202[2009]). Consequently, the amount of interest awarded is excessive. Moreover, in this case, as the amount of attorneys’ fees is dependent upon the accrued interest awarded (11 NYCRR 65-4.6 [e]), the amount of attorneys’ fees awarded is likewise excessive.”


The interest toll and the concomitant attorney fee issue.

Alrof hits Ameriprise

Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins., 2014 NY Slip Op 51858(U)(App. Term 2d Dept. 2014)

“Defendant opposed plaintiff’s motion and sought summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). However,[*2]defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 126[A], 2014 NY Slip Op 50952[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).Accordingly, the judgment is affirmed.”


Paid in full?

Nwulu-Njoku v Azuaru, 2014 NY Slip Op 51878(U)(App. Term 2d Dept. 2014)

“Contrary to defendant’s contention, plaintiff’s acceptance of her check did not constitute an accord and satisfaction. It is well settled that “acceptance of part payment of a liquidated claim is no defense to an action for the balance, even where part payment is in the form of a check reciting that it is in full settlement, in the absence of a signed agreement or some consideration which is new or collateral to the partial payment”

This goes against the usual thought that if you write “paid in full”, the claim is not necessarily “paid in full”.



Inability to pay will not allow vacatur of stipulation

Allstate Ins. Co. v McNeil, 2014 NY Slip Op 51875(U)(App. Term 2d Dept. 2014)

“Stipulations of settlement are favored by the courts and not lightly cast aside” (Hallock v State of New York, 64 NY2d 224, 230 [1984]). Patrick McNeil’s unsupported assertions of financial hardship do not constitute a valid ground to fail to comply with the so-ordered stipulation (see Glover v Sattan, 43 Misc 3d 132[A], 2014 NY Slip Op 50618[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; see also Nash v Yablon-Nash, 61 AD3d 832 [2009]). We note that while Patrick McNeil had indicated, in support of his final application, that he was prepared to pay the amount he owed plaintiff pursuant to the stipulation, there is no evidence that he tendered any further payments.”

What happened Mr. Rookie?

Healthway Med. Care, P.C. v Travelers Ins. Co., 2014 NY Slip Op 51870(U)(App. Term 2d Dept. 2014)

“On its cross motion for summary judgment, the burden was on defendant to demonstrate the timely and valid cancellation of the insurance policy at issue based on nonpayment of the premium. The papers submitted by defendant in support of its cross motion were sufficient to make a prima facie showing that defendant met its initial burden in compliance with Vehicle and Traffic Law § 313 (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d 1174 [2010]; GEICO Indem. v Roth, 56 AD3d 1244 [2008]; Queens Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 35 Misc 3d 146[A], 2012 NY Slip Op 51060[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). The burden then shifted to plaintiff, as the party claiming coverage, to establish defendant’s noncompliance with the statutory requirements as to form and procedure. Inasmuch as plaintiff submitted no opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact (see Flagstar Bank v Bellafiore, 94 AD3d 1044 [2012]) as to the validity of the cancellation of the policy.”


There is one case that usually makes these cancellation cases very difficult:  Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]); Pomona Med. Diagnostic v MVAIC, 30 Misc.3d 132(A)(App. Term 1st Dept. 2011)


Contact Jason Tenenbaum
(516)750-0595 (T) (516)414-2869 (F)
Bookmark and Share
Our No-Fault Practice
I believe that what makes our law firm stand out from other defense firms is the precision of our motion and appellate work, as well as our overall case handling. My track record at the appellate courts and motion courts may be found in the "About JT" tool bar. If you want a properly drafted appellate brief or a properly handled case from inception to conclusion at a reasonable price, send me an email or give me a telephone call.
January 2015
« Dec