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

Fredette v Town of Southampton, 2012 NY Slip Op 03595 (2d Dept. 2012)

“it improvidently exercised its discretion in excluding from consideration the affidavits of Ken Glaser and Kris Kubly on the ground that the affidavits, while notarized, were not accompanied by a certificate of conformity required by CPLR 2309(c). This Court has previously held that the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect (see Smith v Allstate Ins. Co., 38 AD3d 522, 523), a view shared by the Appellate Division, First and Third Departments as well (see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672 [1st Dept]; Sparaco v Sparaco, 309 AD2d 1029, 1031 [3d Dept]; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833 [3d Dept]; see also Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2309:3).”

Exclusive Physical Therapy, P.C. v MVAIC,  2012 NY Slip Op 50862(U)(App. Term 2d Dept. 2012)

“We note that, in his affidavit, defendant’s claims representative stated that he had begun working for defendant after the denial of claim forms at issue had allegedly been mailed by defendant. Consequently, defendant failed to show that its denial of claim forms had been timely mailed”

I suspect one cannot travel in time capsule to learn how the process used to be.  Logical.

Leica Supply, Inc. v Encompass Indem. Co., 2012 NY Slip Op 50890(U)(App. Term 1st Dept. 2012)

Plaintiff’s argument that its assignor’s failure to appear for the duly scheduled EUOs permitted only the denial of pending claims is without merit (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Moreover, plaintiff does not claim to have responded to the EUO requests; therefore, plaintiff’s objection on appeal regarding those requests will not be heard

The next issue to be tackled: What happens when Plaintiff responds to the EUO demands and still fails to attend the EUO?  Do we finally reach a reasonableness analysis?  I would say I can hardly wait, but it is the lack of certainty that makes reading these decisions interesting.  As each gap gets filled, this sometimes becomes an exercise in who can cite the most principles of law.

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co.,  2012 NY Slip Op 50880(U)(App. Term 2d Dept. 2012).

An affidavit executed by defendant’s litigation examiner demonstrated that denial of claim forms, which denied the claims at issue in the first, second, fourth and fifth causes of action based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). However, the affidavit did not address the claim at issue in the third cause of action. As a result, defendant established its prima facie entitlement to judgment as a matter of law as to the first, second, fourth and fifth causes of action”  (At this point, Defendant wishes he could rely on Unitrin)

“The branch of plaintiff’s cross motion seeking summary judgment on the third cause of action should have been denied as well, as plaintiff failed to demonstrate that defendant’s denial of claim form, which was attached to plaintiff’s cross motion, was not timely mailed to plaintiff, or that it was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 (a)”

Raz Acupuncture, P.C. v New S. Ins. Co., 2012 NY Slip Op 50865(U)

“The affidavits submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied (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]) plaintiff’s claims on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule.”

Another great appeal.  Mr. Five Boro would be proud.

Continental Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50844(U)(App. Term 1st Dept. 2012)

“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 (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto (see Unitrin at 560).”

Valley Natl. Bank v INI Holding, LLC,  2012 NY Slip Op 03830 (2d Dept. 2012)

“Although multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause, a subsequent summary judgment motion may be properly entertained when it is substantively valid and when the granting of the motion will further the ends of justice while eliminating an unnecessary burden on the resources of the courts”

Il Chung Lim v Chrabaszcz, 2012 NY Slip Op 03600 (2d Dept. 2012)

1) 13% loss of ROM not deemed a serious injury

2) The old standard of needing to address the radiologist report is necessary notwithstanding Perl

In opposition, the plaintiff failed to raise a triable issue of fact. The approximate 13% limitation in range of motion of the left knee noted by the plaintiff’s treating physician, Dr. Benjamin Chang, on his most recent examination of the plaintiff on December 3, 2010, was insignificant within the meaning of the no-fault statute (see McLoud v Reyes, 82 AD3d 848, 849). In any event, the plaintiff’s submissions were insufficient to raise a triable issue of fact to rebut the finding of the defendant’s radiologist that the injuries depicted in the magnetic resonance imaging (hereinafter MRI) films of his left knee were degenerative in nature and unrelated to the subject accident. Neither the plaintiff’s radiologist nor Dr. Chang addressed the findings of the defendant’s radiologist pertaining to the degenerative nature of the plaintiff’s left knee injuries, and Dr. Chang’s conclusion that, based upon a review of the uncertified MRI report, the subject injuries were caused by the accident and were not degenerative in nature, was speculative and insufficient to raise a triable issue of fact (see Mensah v Badu, 68 AD3d 945, 946; Ortega v Maldonado, 38 AD3d 388).

Siegel v Landy, 2012 NY Slip Op 03625 (2d Dept. 2012)

There is a right to be able to present evidence at an arbitration…

“However, as the plaintiff correctly contends, the arbitration award, as modified, *3 should have been vacated on the ground that the arbitrator failed to follow the procedures set forth in CPLR article 75 (see CPLR 7511 [b][1][iv]). The plaintiff was effectively denied her right to notice, the opportunity to be heard, and the opportunity to present evidence (see CPLR 7506). Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was to confirm the award, as modified, and granted the plaintiff’s cross motion to vacate the award, as modified”

Matter of Matter of Government Empls. Ins. Co. v Morris, 2012 NY Slip Op 03448 (2d Dept. 2012).

I would seriously take notice of this case.  This is probably the standard to prove non-receipt, both in a traverse setting and in the usual mailing battles that no-fault fosters.

“As a general rule of evidence, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Matter of Rodriguez v Wing, 251 AD2d 335, 336 [internal quotation marks omitted]). Here, the appellant adduced evidence at the hearing that gave rise to a rebuttable presumption that the November 3, 2009, letter was duly received by GEICO (see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229). However, GEICO rebutted this presumption by presenting evidence demonstrating its “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525; see Electronic Servs. Intl. v Silvers, 233 AD2d 361). In addition, to the extent that the conclusion of the Supreme Court was based upon credibility determinations, such determinations are entitled to deference on appeal (see Matter of Allstate Ins. Co. v Albino, 16 AD3d 682, 683; Contarino v North Shore Univ. Hosp. at Glen Cove, 13 AD3d 571).”