No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law

Cruz v Martinez, 2013 NY Slip Op 03417 (1st Dept. 2013)

“Even if an anxiety disorder could constitute a serious injury within the meaning of the Insurance Law, the affidavit of Benjamin Hirsch, Ph.D., who evaluated Clark once, did not raise an issue of fact. Indeed, Hirsch, who did not set forth his expert credentials, noted that he did not perform any objective neuropsychological tests, since Clark did not describe any symptoms of neuropsychological distress”

Two problems here.  One, there was no discussion of the doctor’s credentials.  Perhaps a header stating that he is licensed or that he was a PH.D somewhere would have been sufficient.  Furthermore, the failure to examine a body part despite a claimant’s failure to state an injury to the body part is insufficient.

Mughal v Rajput, 2013 NY Slip Op 03466 (2d Dept. 2013)

“Although the defendants initially opposed the motion solely through the submission of an attorney’s affirmation, about two weeks later, and prior to the adjourned return date of the motion, they submitted an affidavit from Rajput….”

“Contrary to the plaintiffs’ contention, the Supreme Court did not improvidently exercise its discretion in considering Rajput’s affidavit. Although the affidavit was not timely submitted, the plaintiffs had an opportunity to respond to it, and were not prejudiced thereby (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874, 875; Turturro v City of New York, 77 AD3d 732, 734; Valure v Century 21 Grand, 35 AD3d 591, 592; Hoffman v Kessler, 28 AD3d 718; Franklin v Omni Sagamore Hotel, 5 AD3d 348; Vlassis v Corines, 254 AD2d 273).”

Here is my favorite Civil Kings briefing schedule horror story.  Motion for summary judgment adjourned and the forced stipulation of adjournment is submitted for your signature.  Arbitrary dates are given to interpose cross-moving and responsive papers, i.e. “the briefing schedule”.  Your papers are late, but there is still 1-2 months to go prior to the final return date on the motion.  Adversary argues your papers are late but presents sufficient evidence to oppose your motion.

Result: Adversary wins because you violated the sacrosanct briefing schedule.  As seen here and in other cases, the question should be prejudice not form over substance.  My vote is to do away with the briefing schedule – it is a trap for the unwary.  Were the papers served in accordance with CPLR 2214?  If yes, fine.  If no, then you have a problem.

Genovese v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 03453 (App. Term 2d Dept. 2013)

“The complaint alleged, among other things, that the plaintiff entered into an insurance contract for State Farm to provide the plaintiff with no-fault insurance benefits if he was involved in a car accident, and that State Farm breached the contract by denying coverage for medical services. Since the allegations in the complaint were sufficient to state a breach of contract cause of action, the Supreme Court should have denied that branch of State Farm’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action.

The Supreme Court properly granted that branch of State Farm’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which sought consequential damages for breach of the no-fault insurance benefits policy. The plaintiff’s prolix allegations, when “[s]tripped of their verbiage” (United States Fid. & Guar. Co. v Pressler, 77 NY2d 921, 923), do not adequately plead facts that would support a finding that his damages for pain and suffering arose out of State Farm’s alleged breach of its obligations under its no-fault insurance contract with him (see id. at 923).”

This was Mr. Zuppa’s case.  I omitted the fact that his fraud causes of action were booted.  I think the 3211(a)(7) portion and the fact that the court was unhappy with his prolix allegations was enough to post.  Admittedly, I had to google the word prolix – I never encountered it before in my 30+ years on this earth.  That word in the history of the published decisions in New York has been used 167 times.  Not a lot when you consider that our courts probably generate over 10,000 opinions a year.  Incidentally, the last time the Second Department used the prolix was in 2007 (Data Tree, LLC v. Romaine, 36 A.D.3d 804, 828 N.Y.S.2d 512, 2007 N.Y. Slip Op. 00526, N.Y.A.D. 2 Dept., January 23, 2007 (NO. 2005-06121, 19331/04).

Knowing the Plaintiff, the complaint read like a novel.

Infinity Health Prods., Ltd. v Redland Ins. Co., 2013 NY Slip Op 50751(U)(App. Term 2d Dept. 2013)

“On appeal, defendant’s sole argument is that it raised a triable issue of fact and made a prima facie showing of entitlement to summary judgment by submitting sufficient proof that it had properly mailed the IME scheduling letters and that plaintiff’s assignor had failed to appear. Regarding the address to which the IME scheduling letters were mailed, defendant alleges that [*2]“[t]he IME scheduling notices were mailed to the assignor’s attorney and copied to the assignor at the address (including zip code) that the assignor provided.” However, a review of the file reveals that plaintiff’s assignor’s zip code was listed as 10469 on both plaintiff’s claim form and the assignment of benefits submitted by plaintiff to the court in support of its motion for summary judgment, while the IME scheduling letters and the postmarked mailing logs submitted by defendant list the zip code as 10468. Only proof of proper mailing gives rise to a presumption of receipt (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Furthermore, there is nothing in the record to suggest that plaintiff’s assignor was represented by the attorney to whom the IME scheduling letters were also sent. Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled (cf. Star Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2006]).”

Investigation reveals that the NF-2, which listed the zipcode 10469, was not included in the motion papers.  It seems that because of this, the court then held that Defendant failed to present any evidence that the letters were sent to the PI attorney.  Note that the App. Term First Department places the burden on the Medical provider to prove that the letters were not sent to the PI attorney or that there was a PI attorney that should have received the IME letters.

Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co.,  2013 NY Slip Op 50763(U)(App. Term 2d Dept. 2013)

“Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claim based on plaintiff’s [*2]failure to appear, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff does not claim to have responded in any way to the EUO request, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]), and therefore discovery relevant to the reasonableness of the EUO requests was not necessary to oppose the motion (see CPLR 3212 [f]).”

Oh how many times do I see the arguments: Discovery is outstanding – the motion for summary judgment on the declaratory judgment action alleging EUO no shows should be stayed.  While only one Supreme Court Justice out of 20 have bought this argument, it is nice to see the App. Term shut it down.

Park Slope Med. v Praetorian Ins. Co.,  2013 NY Slip Op 50761(U)(App. Term 2d Dept. 2013)

Is there something about durable medical equipment that brings out the ire of Appellate Term Justices?  Last year, the First Department had something to say about DME.  Now a panel of judges, who in my opinion, are not all too friendly to the carriers had this to say:

“Defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical supplies at issue, in that the supplies were superfluous, given that the assignor was already receiving three forms of therapy, which the peer reviewer stated was “more than adequate.” In opposition, plaintiff submitted an affirmation by a medical doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report”

Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 50758(U)(App. Term 2d Dept. 2013)

“Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its [*2]objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]).”

This is a condensed statement of fact and law on the EUO provider no-show front.

Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co, 2013 NY Slip Op 50750(U)(App. Term 2d Dept. 2013)

“The affidavit further states that, in this case, after each of the dates on which an IME was scheduled, the assigned healthcare professional “informed” SIGNET that plaintiff’s assignor had not appeared. Defendant also attached letters from SIGNET to defendant stating that plaintiff’s assignor had failed to appear for scheduled IMEs. In its brief, defendant argues, in effect, that it had been “notified” that plaintiff’s assignor had failed to appear for IMEs and that the letters from SIGNET are not hearsay because the “statement” of the healthcare professional was being proffered in this case only to prove that the statement was made, not for its truth. However, in order to raise a triable issue of fact, defendant must demonstrate that plaintiff’s assignor actually failed to comply with a condition precedent to coverage by failing to appear for duly scheduled IMEs, and defendant failed to do so.

It was a novel attempt to prove a no-show through the vendor.  Pre-Fogel, it would have worked.  But for the last 7 years, this is not necessarily the way to go about making your case.  The court was correct on this one.

Kew Garden Imaging v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 50748(U)(App. Term 2d Dept. 2013)

“The Civil Court precluded defendant’s medical witnesses from testifying on the ground that those doctors could not testify as to the contents of the medical records they had reviewed in preparing their peer reviews.

As defendant’s doctors should have been permitted to testify (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip [*2]Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), a new trial is required.”

Peer hearsay.  The party that made the frivolous objection at trial should pay the cost for Defendant’s expert.

Medalliance Med. Health Servs. v Allstate Ins. Co., 2013 NY Slip Op 23156 (Civ. Ct. Queens Co. 2013)

A prompt letter reminding the carrier that it owes interest in an amount less than $5.00 moots the argument that collection of interest in an amount that is less than $5.00 is categorically prohibited.

The arguments raised in this case are questionable, but somebody had to raise them.  In the end, Civil Court came to the inescapable conclusion that the provider was entitled to its interest and its attorney fee.

“On this motion and cross motion, as well as other motions that are pending, the issue is whether the plaintiff is entitled to recover overdue interest when it does not exceed the sum of five dollars indicated in 11 NYCRR 65-3.9 (a). The defendant contends that the regulation limits overdue interest to an amount exceeding five dollars that is to be paid, without demand, upon payment of the overdue claim. The plaintiff claims that the regulation does not preclude the applicant from demanding overdue interest below five dollars. There are prior orders in Civil Court, Queens County that have decided this issue in cases involving different parties. These orders, some of which are signed by this Court, have held that collection of overdue interest of less than five dollars is not precluded by regulation 11 NYCRR 65-3.9 (a).”

…

“The interest which accrues on overdue no-fault benefits at a rate of two percent per month is a statutory penalty designed to encourage prompt adjustments of claims and inflict a punitive economic sanction on those insurers who do not comply (citations omitted)” (East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d at 210). The construction of 11 NYCRR 65-3.9 (a), that is advocated by the defendant, would preclude overdue interest of less than five dollars. This would conflict with the statutory language of Insurance Law §5106(a) which imposes interest on “all overdue payments.” The change would also tend to increase the delay in compensating low cost medical benefits that accumulate minimal overdue interest. Such a construction of the statute [*5]conflicts with its primary aims and violates the legislative intent.

The legislature was entitled to enact a limitation on the overdue interest in Insurance Law §5601(a), as it did by expressly eliminating interest of “less then two dollars” in Insurance Law §3224-a (c) (1). However, the legislature did not exempt the overdue interest of less than five dollars, that is sought by the defendant. The Superintendent of Insurance also did not preclude the collection of overdue interest that is less than five dollars, if it is demanded. This Court will not now prevent the collection of such interest.

Accordingly, the plaintiff’s motion for summary judgment is granted and the plaintiff is awarded judgment, pursuant to Insurance Law §5106 (a), for the overdue interest and attorney fees alleged in the complaint. The defendant’s cross motion to dismiss the action is denied.”

By the way, as and for the attorney fee, is 65-4.6(b)(3) applicable?  For disputes involving interest only, the attorney fee shall equal the amount of interest up to $60?