IME no-show (First Department)

Sunrise Acupuncture, P.C. v Encompass Auto & Home Ins. Co., 2014 NY Slip Op 51082(U)(App. Term 1st Dept. 2014)

“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 his counsel, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). With respect to the appearance issue, defendant presented competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of the defendant’s third-party biller attesting to the affiants’ “personal knowledge of the office procedures when a[n] [assignor] failed to appear for a medical exam” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424).”

Failure to settle declaratiory judgment not fatal to summary judgment motion in underlying Civil Court action

New Milennium Medical Imagine, P.C. v. American Transit Ins. Co., Index #: 4588/13 (Civ. Ct. Kings Co. 2013)

The Appellate Term held this month that a Notice of Entry is not a necessary to enforce a judgment under a theory of collateral estoppel.  Of course, the next question to be asked is what happens when you obtain summary judgment in a declaratory judgment action, yet fail to enter a judgment on the underlying judgment?

Certain Plaintiff’s argue that the declaratory judgment is not enforceable.  Not surprisingly, certain judge’s followed that logic.  Enter Justice Ottley, who blew through the smoke and mirrors and held

“Plaintiff argues that due to defendant’s failure to demonstrate tha tit cimplied with the declaratory judgment order to settle judgment, defendant’s motion for a default judgment in the Supreme Court matter should be considered abandoned and result in the declaratory judgment order being deemed moot.  Contrary to plaintiff’s argument, the court finds that defendant’s failure to settle judgment within 60 days as proscribed, did not amount to defendant’s abandonment of the declaratory action.  Rather, defendant is entitled to settle judgment non pro tunc.  See, Elliott Zaretsky v. ok Hui Kin, et. al., 17 AD3d 455 (2d Dept. 2005)

Walking out of an EUO leads to a disclaimer and a whole lot more

American States Ins. Co. v Huff, 2014 NY Slip Op 05366 (1st Dept. 2014)

(1) “[p]laintiff’s motion for summary judgment as sought a declaration that plaintiff properly disclaimed coverage of its insured…”

(2) “Plaintiff commenced this action, in effect, seeking a declaration that it is not obligated to pay these no-fault benefits to defendants because, among other reasons, Huff failed to complete an examination under oath (EUO), as required by the subject insurance policy. Thus, plaintiff asserts that Huff breached a condition precedent to coverage under the policy, and defendant medical providers are not entitled to recover Huff’s no-fault benefits.”

(3) “We find that Supreme Court properly granted summary judgment in plaintiff’s favor. In support of its motion, plaintiff relied primarily upon Huff’s EUO, which was corroborated by the affidavit of plaintiff’s investigator who was present at the examination. The EUO established that Huff appeared for his EUO, but departed before questions regarding the accident and his injuries had been asked. The aborted EUO of Huff, the named insured, established a prima facie case that Huff had breached a condition precedent to coverage under the policy.”

(4) “In opposition, defendants do not dispute what occurred at the EUO. Instead, defendants argue that the transcript of the EUO was inadmissible. We find, however, that the EUO [*2]transcript of Huff was admissible evidence on the motion for summary judgment as it was certified by the court reporter and is considered a party admission (see Zalot v Zieba, 81 AD3d 935, 936 [2nd Dept 2011], lv denied 117 NY3d 703 [2011]))”

(5) “Insofar as defendants complain that plaintiff did not seek another EUO, the record demonstrates that Huff, represented by counsel, was advised of the ramifications of his refusal to continue the EUO, and confirmed that he understood.”

(6) “An assignee “stands in the shoes” of an assignor and thus acquires no greater rights than its assignor (see Arena Const. Co. v Sackaris & Sons, 282 AD2d 489 [2d Dept 2001]; see also Dilon Med. Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927, 930 [Civ Ct, Kings County 2005]). Since the defense of the breach of a condition precedent to coverage under the policy may indisputably be raised by plaintiff against Huff, it is available as against defendants, who accepted assignments of no-fault benefits (see Hammelburger v Foursome Inn Corp., 54 NY2d 580, 586 [1981]; Losner v Cashline, L.P., 303 AD2d 647, 648 [2nd Dept 2003]).”

This is perhaps the DJ of the year so far.  So many principles of law have been established and/or confirmed.  First, the medical provider and or assignor must cooperate with the EUO, i.e., attend it and answer questions.  Second, the failure to cooperate during the EUO through walking out during it, objecting too many times, engaging in obstructionist behavior can lead to a violation of a condition precedent to coverage, provided Park v. Long Island Insurance Company warnings are set forth.

The unsettled question that may play out now is: what constitutes obstructionist behavior?  We know the outter bounds of what constitutes this behavior.  But, how many objections is required before a disclaimer may be issued?  What happens if an EIP or medical provider lies during the EUO?  How does Utica v. Timms (you can lie and not lose your benefits) work into this equation?  There a lot of unanswered questions.  In my mind, the extremes will allow for a disclaimer.  Misrepresentations and a few inappropriate objections will probably not trigger a Huff remedy.

On top of that, the contents of the EUO transcript are admissible without further foundation against the medical provider.  Counsel for Defendant was successful at making that argument in Civil Court Kings County against me a few years ago, i.e., you cannot use the contents of the EUO transcript against the innocent assignee.  I thought it was an incredulous argument, which would be shot down at the Appellate Term or Appellate Division.

Funny enough, counsel in the Civil Kings case pressed his luck in front of the First Department and rightfully saw what five learned jurists had to say about that argument.  These are all good things in my mind.

I believe that this case is probably somewhere between the ATIC dj appeals and Unitrin as to its precedential value.


EUO no show sustained

American Tr. Ins. Co. v Cartagena,  2014 NY Slip Op 31696(U)(Sup. Ct. NY Co. 2014)

“Plaintiff AMERICAN TRANSIT INSURANCE COMPANY in this  declaratory judgment action moves for a summary judgment for the  relief demanded in the Complaint pursuant to CPLR 3212 in its  favor against defendant LONGEVITY MEDICAL SUPPLY, INC. based upon  the failure to provide duly scheduled “Examinations Under Oath”  of defendant assignor REMANSIA CARTAGENA, an individual who

assigned to defendant LONGEVITY MEDICAL SUPPLY, INC., a  medical/health care provider, his/her right to be reimbursed for  benefits under the No-Fault law~ for the expenses of treatment  for injuries suffered in an automobile accident on November 20,  2011.
As held by the First Department in Unitrin Advantage Ins Co  v Bayshore Physical Therapy, 82 AD3d 559, 560 (1st Dept 2011): The failure to appear for [EUOs] requested by the insurer  ” … as … may reasonably [be] require[d]” (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the no-fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v Chubb Group of Ins. Cos. ( 90 NY2d 195 · [1997] ) .

As in Unitrin, here “plaintiff has satisfied its prima facie burden on summary judgment of establishing that it requested (EUOs) in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants’ assignors did not appear. In opposition, defendants failed to raise an issue of fact that the requests were unreasonable”. “The affidavit of service raised a presumption that a·proper mailing occurred, which defendants failed to rebut” (American Transit Insurance Company v Marte-Rosario, 11 AD3d 442 [1st Dept 2013]) . Finally, Cambridge Medical, P.C. v  Progressive Casualty Ins. Co., 29 Misc3d 186 (NYC Civil Co,  Richmond Co 2010), an opinion of coordinate jurisdiction not binding on this court, stands only for the proposition that  under 11 NYCRR 65-3.6, the insurer may send the notice for follow  up verification to the insurer, as assignee, and is not required to so notice the injured party. In addition, Cambridge interprets a rule separate from 11 NYCRR 65-1.1 with respect to  Examinations Under Oath (EUO), the rule at issue here”


The Defendant walked into oral argument according to my report with a case called Cambridge v. Progressive and said that our Dec action was invalid.   I barely recalled Judge Levine’s case as she writes so many.  I look it up and told my attorney if the judge was considering this act of desperation.  He laughed.  I am glad the judge realized this was smoke in mirrors.

Another Golia on the bench

People v Cruz, 2014 NY Slip Op 24175 (Crim Ct. Queens Co. 2014)

My first citing of an opinion from Hon. Donna Marie Golia a/k/a Donna Marie Petze.  I recalled that she was an ADA in Queens.   But I did not realize she was elected to Civil Court.

May she reach the Appellate Term with the might, vigor and dignity as her father, the retired Hon. Joseph Golia.  Whenever I needed a dissent to prove that I was justified for appealing something, I could always count on Justice Joseph Golia.  There might be a few more of mine out there – I just do not recall them right now.

Astoria Wellness Med., P.C. v State Farm Mut. Auto Ins. Co., 29 Misc.3d 136(A)(App. Term 2d Dept, 2010)(reasonable excuse found for default)

Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co., 28 Misc.3d 138(A)(App. Term 2d Dept. 2010)(MRIs of shoulder and knee were medically inappropriate)

Continental Medical, P.C. v. Mercury Cas. Co., 22 Misc.3d 134(A)(App. Term 2d Dept. 2009)(Golia and Steinhardt were  in the majority and Weston-Patterson dissented)


Discovery sanction of dismissal was warranted

Jamhil Med., P.C. v Allstate Ins. Co., 2014 NY Slip Op 51028(U)(App. Term 2d Dept. 2014)

“Defendant subsequently moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the July 6, 2011 order of the Civil Court since plaintiff had failed to produce its owner and its employee for duly scheduled examinations before trial. Plaintiff opposed the motion and submitted written responses to defendant’s discovery demands. Plaintiff appeals from an order of the Civil Court entered July 17, 2012 which granted defendant’s motion and dismissed the complaint with prejudice.”

” The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court’ ” (Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012], quoting Giano v Ioannou, 78 AD3d 768, 770 [2010], quoting Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the present case, plaintiff’s willful and contumacious conduct can be inferred from its refusal to adequately comply with [*2]discovery requests, even after being directed to do so by court order, as well as the absence of a reasonable excuse for its failure to comply (see Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v Joyce, 10 AD3d 601 [2004]).”

So the Court found that a one strike rule was proper.

Statute of Limitations defense was SOL

Dyckman Med. Diagnostic/Treatment, P.C. v Granite State Ins. Co., 2014 NY Slip Op 51026(U)(App. Term 2d Dept. 2014)

(1) “A defendant seeking summary judgment dismissing a complaint on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action had expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009];Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). ”

(2) “defendant annexed an affidavit by a litigation specialist employed by a company that administers claims for it, which company is located in Albany, New York, who merely stated, based on a review of defendant’s records, that defendant had never received a summons and complaint in the instant action prior to September 26, 2008. ”

(3) “As an affidavit of a process server constitutes prima facie evidence of proper service, defendant’s mere conclusory denial of receipt of that summons and complaint, made by an employee of a company other than defendant and not by someone employed at the New York City office where service was effectuated, was insufficient to rebut plaintiff’s prima facie proof of proper service”

(4) “It should be noted that defendant’s submission of an answer in 2008 and its service of discovery demands acted as a waiver of any right it may have had to dismissal, pursuant to CPLR 3215 (c), of the 2003 complaint, to which complaint defendant allegedly had never previously served an answer”

So much went wrong for Granite State.  As some might say, they could not get out of their own way on this one.

Surgery was done so well that plaintiff lost his day in court

Acosta v Vidal, 2014 NY Slip Op 05025 (1st Dept. 2014)

“[h]e failed to address the conflicting findings made by plaintiff’s physical therapist of normal range of motion in all parts one week after the accident (see Thomas v City of New York, 99 AD3d 580 [1st Dept 2012], lv denied 22 NY3d 857 [2013]; Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011]). The physical therapy records showed that plaintiff’s neck and back continued to have full range of motion at two subsequent appointments, while the left shoulder had limitations attributable to the surgical procedure, which improved within a month. Minor limitations are insufficient to support a serious injury claim (see Rickert v Diaz, 112 AD3d 451 [1st Dept 2013]).

In addition, the surgeon’s report of a post-surgical examination found that plaintiff had a negative impingement sign, indicating the condition had been repaired.”

The surgery was so successful that the plaintiff did not sustain a permanent consequential injury injury or a significant limitation of a body system.  This is rough.

No reasonable excuse found

DTG Operations, Inc. v Excel Imaging, P.C., 2014 NY Slip Op 05030 (1st Dept. 2014)

(1) “In this declaratory judgment action seeking a declaration that the medical provider defendants have no right to collect no-fault benefits for medical services allegedly provided to the claimant defendants, defendants-respondents failed to offer a reasonable excuse for their default and a meritorious defenseIn this declaratory judgment action seeking a declaration that the medical provider defendants have no right to collect no-fault benefits for medical services allegedly provided to the claimant defendants, defendants-respondents failed to offer a reasonable excuse for their default and a meritorious defense”

(2) “In support of their motion to vacate the default, defendants-respondents submitted, among other things, the affidavit of their office and billing manager who stated that she “d[id] not recall” any court papers on this matter, but did not deny receiving any. She further stated that the office location had moved, but did not specify whether that move occurred before or after the date reflected in the affidavits of service. She further asserted that the “summons” did not provide any information from which to link this action to the claimant treated by defendants-respondents. However, the concise, 10-page complaint named defendants-respondents and claimants as defendants in the caption and plainly states that claimants sought medical treatment from defendants-respondents for which plaintiff sought a declaration that defendants-respondents were not entitled to reimbursement.”

(3)  “Further, defendants-respondents’ proffered defense, that the examinations under oath requested by plaintiff are improper, is contrary to law” (see 11 NYCRR 65-1.1).

Prima facie case

J.C. Healing Touch Rehab, P.C. v Amica Mut. Ins. Co., 2014 NY Slip Op 50969(U)(App. Term 2d Dept. 2014)

“While the supporting affidavit by plaintiff’s billing agent established that plaintiff had mailed the claim forms in question to defendant, and that defendant had failed to pay those claims within the requisite 30-day period, the affidavit failed to demonstrate either that defendant had failed to deny the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms which were conclusory, vague or without merit as a matter of law. As plaintiff failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment was properly denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33).”

The medical provider still needs to allege that it never received a denial, the denial was untimely, or the received denial is defective.  Etienne did not change that part of Plaintiff’s prima facie case.

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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.
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