DJ granted in causation

Interboro Ins. Co. v Anesthesia Solutions, P.C., Index # 600498/14 (Sup. Ct. Nassau Co. 2014)

In this case, the insurance carrier provided a peer report and radiological review, similar to what occurred in Mian v. Interboro.  The Court found those proofs sufficient to find a prima facie lack of causal relationship between the loss and the surgery, MRIs and post surgical services that were performed in the injured person.

OBS must be an Article 28 to be compensable

OBS is not compensable according to Judge d’Auguste

“Finally, the parties both cite to statements published on the DOH’s website reflecting its position concerning facility fee reimbursements to OBS facilities:

35. Does OBS accreditation qualify a private OBS practice to receive a “facility fee”? PHL § 230-d does not address or require reimbursement of an OBS facility fee. Accreditation status does not require a third party insurer to pay a facility fee. An OBS practice is not a health care facility under PHL Article 28 or as defined by PHL § 18. Neither Medicaid nor Medicare pays a facility fee to private physicians’ offices for office-based surgery. DOH does not establish fee schedules or billing guidelines for OBS.
Office-Based Surgery (OBS) Frequently Asked Questions (FAQ’s) for Practitioners, N. Y. State
Dep’t of Health,
(last updated Mar. 2014). These statements support the conclusion that State Farm was under no obligation to reimburse Avanguard’s facility fee. Accordingly, summary judgment should be entered in favor of State Farm and A vanguard’s complaint should be dismissed.”

CPLR 3216 again

Restoration Sports & Spine v Geico Ins. Co., 2014 NY Slip Op 51729(U)(App. Term 2d Dept. 2014)

Plaintiffs commenced this action to recover assigned first-party no-fault benefits in September 2008. On June 25, 2011, defendant served a 90-day notice pursuant to CPLR 3216 (b) (3). Plaintiffs did not file a notice of trial, move to vacate the 90-day notice, or move to extend the 90 days. In April 2012, defendant moved to dismiss the complaint pursuant to CPLR 3216. The Civil Court denied defendant’s motion.”

Except under circumstances not presented here, a plaintiff seeking to avoid dismissal pursuant to CPLR 3216 is required to demonstrate both a justifiable excuse for its delay and a meritorious cause of action (see CPLR 3216 [e]; Belson v Dix Hills Air Conditioning, Inc., 119 AD3d 623 [2014]; Davis v Goodsell, 6 AD3d 382, 384 [2004];Lama v Mohammad, 29 Misc 3d 68 [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, plaintiffs’ attorney’s conclusory statement that bills had been submitted to defendant and had not been paid within 30 days of their submission was insufficient to demonstrate the merit of plaintiffs’ case (see Sortino v Fisher, 20 AD2d 25 [1963]; Lama, 29 Misc 3d 68;Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d & 11th Jud Dists 2004]). Moreover, plaintiff did not commence this action upon a verified complaint (CPLR 105 [U]).”

CPLR 3216 at work…

A timely denial with errors

NYU-Hospital for Joint Diseases v Allstate Ins. Co., 2014 NY Slip Op 08613 (2d Dept. 2014)

On October 18, 2012, the plaintiff mailed a copy of the NF-5 claim form to the defendant, Lopez’s automobile insurance carrier. The defendant received it on or about October 20, 2012, and thereafter issued an NF-10 denial of claim form dated November 14, 2012. The plaintiff, while not disputing that the defendant had issued a denial of claim within 30 days after its receipt of the NF-5 claim form, asserted in its motion for summary judgment that the NF-10 form was “defective” because it “contain[ed] the wrong amount of the bill and the wrong amount in dispute.” Upon an order entered September 10, 2013, granting that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, the Supreme Court entered a judgment in favor of the plaintiff and against the defendant in the principal sum of $19,095.62.

Among the ways in which a no-fault insurer may comply with the “30 day rule” (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; [c]) is by issuing a “timely and sufficient” NF-10 denial of claim form within 30 days after its receipt of an NF-5 claim form (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46). Nonprejudicial mistakes or omissions in [*2]an otherwise timely and proper “NF-10″ denial of claim form are not necessarily fatal (see Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co., 114 AD3d 855; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191-1192; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737, 738; cf. St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664). Here, the papers submitted in support of the plaintiffs’ motion for summary judgment included a copy of the defendant’s NF-10 denial of claim form. Contrary to the plaintiff’s contention, the NF-10 form was timely and sufficient. Under the circumstances of this case, the plaintiffs did not meet their prima facie burden of establishing their entitlement to judgment as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d at 46).

An NF-10 can have mistakes, but the question is whether they are prejudicial.  Here, the NF-10 had the UB-05 amount and not the DRG value.  The Court allowed the claim to be handled on its merits, and rightfully so.

A true insurance attorney has passed

It is with sadness that I learned about the passing of Norman Dachs.

I never had the pleasure of meeting Norman Dachs, Esq.  He was a pioneer in the third-party personal injury realm, but I did not get heavily involved in that area of work until I started my practice in 2010 and never knew him in that vain.  Mr. Dachs became a master arbitrator a few years ago.  My review of the hundreds of decisions he wrote showed a very intellectual viewpoint.  There is no other master arbitrator who would push the bounds of Petrosky as Mr. Dachs.  In fact, writing a brief to him was many times more intellectually thrilling than the rote Appellate Term, Second Department responses that I am stuck writing.

For purposes of full disclosure, I would note that I was cursing his name last week as he reversed a lower arbitration victory of mine, forcing a trip to Supreme Court on a Petition.  I just filed the Petition today. While I disagreed with him, I appreciated his vigor and the fact that he was not a rubber stamp to the awards of the AAA arbitrators.  We need more Norman Dachs’ in the no-fault system.  A good hire on the part of DFS and a true attorney.  I will miss Master Dachs.

Jason Tenenbaum

Contemporaneous medical records sufficient

Sanchez v Draper, 2014 NY Slip Op 08584 (1st Dept,. 2014)

“Plaintiff also submitted certified medical records of the physical therapy and chiropractic treatment he started receiving within days of the accident. Such evidence supports a finding of a causal connection between the accident and the injuries”

In light of Amato, this has a potential application in first-party practice.

Triable issue of causation established

Vargas v Marte, 2014 NY Slip Op 08561 (2d Dept. 2014)

Triable issue of fact on causation

“In particular, plaintiff’s surgeon, recognizing that plaintiff had sustained a prior left knee injury and some age-related degeneration, opined, following his review of plaintiff’s MRIs from before and after the accident, that the lack of left knee pain prior to the accident, coupled with the acute onset of pain after the accident, showed that plaintiff’s left knee meniscal tears were causally related to the subject accident”

Assuming you do not have the MRI’s, would the remainder of the passage be sufficient to defeat summary judgment?  Unsure – but probably yes in light of Perl.

It did not work the second time around

Perhaps the only thing worse than leaving your fate in the hands of the Civil Court is to leave your fate at the mercy of the Appellate Division.  I say this not in a disparaging way; it just bespeaks the randomness of the decisions that come from these Courts.

Those who have been in this business awhile (>10 years) can tell you that cases you didn’t think you should win you won, and those cases that you should have won, you did not win.

This occurred to me in the last month.  An appeal that I perfected due to frustration and without much legal precedent was a victory for me. (Koyachman v Paige Mgt. & Consulting, LLC, 121 A.D.3d 951 [2d Dept. 2014]).  I was beyond shocked to have won Koyachman.  The failure to serve an OSC as directed in the order mandates the denial; yet, there is now a Koyachman exception.

Yesterday, the court despite granting similar relief to Plaintiff on similar affidavits in Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d 1102 (2d Dept. 2009), denied similar relief in Interboro v. Johnson.   In both of these cases, the insurance carrier solely relied upon a radiological review.  Compare Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co.. 28 Misc.3d 136(A)(App. Term 2d Dept. 2010)(finding prima facie entitlement to summary judgment on causation based upon radiological review)

Compare this to  Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc.3d 135(A)(App. Term 1st Dept. 2013), where the carrier relied upon a radi0logical review and a peer review to dispute the causal relationship between the accident the treatment, and the Court dismissed the complaint.

A similar instance of this disconnection between cases with similar records  is the Appellate Term holding that a low-impact study cannot disprove causation (Bronx Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.. 17 Misc.3d 97 [App. Term 1st Dept. 2007]), while another Appellate Term held that the low impact study was not only sufficient to raise an issue of fact; but was sufficient to prima facie prove lack of causation.   Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 34 Misc.3d 153(A)(App. Term 2d Dept. 2012)

Or, how about the Appellate Term which held a conclusory affidavit was insufficient to defeat a medical necessity motion (Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc.3d 139[A][App. Term 1st Dept. 2013]), yet allowed the same type of conclusory affidavit to defeat the motion.    Arnica Acupuncture P.C. v Interboro Ins. Co., 43 Misc.3d 130(A)(App. Term 1st Dept. 2014)

So Johnson is another example of placing your fate with the Appellate Division and hoping for the best.

Failed to adduce that (s)he was an expert

Flanger v 2461 Elm Realty Corp., 2014 NY Slip Op 08532 (3d Dept. 2014)

“Defendant also submitted the affidavit of an alleged expert engineer who opined that the sidewalk and curb complied with all state and local building and fire codes and the sidewalk was in a good state of repair. A precondition to the admissibility of expert testimony is that the proposed expert is “possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” (Matott v Ward, 48 NY2d 455, 459 [1979];see Hofmann v Toys “R” Us, NY Ltd. Partnership, 272 AD2d 296, 296 [2000]). Defendant’s proffered expert affidavit does not include the information necessary to permit a court to reach such a determination. In his affidavit, defendant’s proffered expert listed the initials “P.E.” after his name, stated that he is a principal in a specific engineering firm, and stated his opinion based on his inspection, review of codes and his “experience as an engineer.” While the “P.E.” would indicate that he is licensed as a professional engineer (see Education Law § 7202), the expert did not explicitly state whether he is licensed in any particular state. He also did not mention anything about his education, what type of engineer he is (e.g., mechanical, chemical, electrical), or any experience he may have that would be relevant to the design and maintenance of curbs and sidewalks. Nor did he attach a curriculum vitae that presumably would have included some or all of that information (see Bova v County of Saratoga, 258 AD2d 748, 750 [1999]; compare Winney v County of Saratoga, 8 AD3d 944, 945 [2004]).”

This is an interesting case as to what must be included in the expert report or CV.  I am left to assume that a peer report or IME that states the name of the person, that he is a doctor with a specialty OR a chiropractor, acupuncture with a credential should be sufficient.  On the other hand, a nurse, engineer, coder or other person would have to set forth their credentials in the report (or have a CV attached).  An interesting case.

Break in the chain of causation

Kester v Sendoya, 2014 NY Slip Op 08379 (1st Dept. 2014)

“While plaintiff’s certified medical records may be referenced to show her complaints and the doctor’s referral for treatment (see Salman v Rosario, 87 AD3d 482, 483 n [1st Dept 2011]), those records demonstrate that in the months following the February 2010 accident plaintiff sought treatment for other conditions but made no complaint of shoulder pain until June 2010. She was then referred to an orthopedist, but did not seek medical treatment for her shoulder injury until August 2010, some six months after the accident, and had an MRI performed the next month. Absent any evidence of contemporaneous, postaccident treatment or evaluation of plaintiff’s shoulder, she failed to raise an issue of fact as to whether her shoulder condition was causally related to the accident (see Henchy v VAS Express Corp., 115 AD3d 478, 479 [1st Dept 2014]; Rosa v Mejia, 95 AD3d 402 [1st Dept 2012]). Furthermore, the affirmed report of her orthopedic surgeon, who first examined plaintiff a year after the accident, was insufficient to raise an issue of fact”

The failure to treat for a particular condition (or to show evidence of same) for 6 months following the motor vehicle accident will break the chain of causation and render an opinion on causation as speculative.  This is the extension and really what the Appellate Term meant when it reversed Amato.

Contact Jason Tenenbaum
(516)750-0595 (T) (516)414-2869 (F)
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