No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law
Archive for July 8th, 2010
The minimum that an affidavit must contain
Furtow v Jenstro Enters., Inc., 2010 NY Slip Op 05987 (2d Dept. 2010)
“Here, Ching submitted an affidavit which recited that he was “duly sworn” and contained a jurat stating that the affidavit was “sworn to before” a notary public, who signed and stamped the document. On the record presented here, the form of the affidavit was adequate (see Sirico v F.G.G. Prods., Inc., 71 AD3d 429; Sparaco v Sparaco, 309 AD2d 1029, 1030; Feinman v Mennan Oil Co., 248 AD2d at 504; Collins v AA Truck Renting Corp., 209 AD2d at 363).”
The affidavit at a minimum must say this: John Doe, DULY SWORN….
Sworn to before
notary public
[notary stamp]
Give it up already?
Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 2010 NY Slip Op 51177(U)(App. Term 2d Dept. 2010)
It gets to the point where enough is enough. The Appellate Term, Second Department, has repeatedly held that acupuncture services are reimbursable, as a matter of law, at the chiropractor rate. The Court in the case stated the following:
“This court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co, 26 Misc 3d 23, 24 [App Term, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that defendant paid plaintiff based upon the workers’ compensation fee schedule for acupuncture services performed by a medical doctor, a rate higher than that established for acupuncture services performed by a chiropractor, we decline to disturb so much of the order as granted defendant summary judgment dismissing plaintiff’s complaint with respect to those claims.”
What is somewhat new is that the Appellate Term has held that the “it is not compensable” defense for failing to pay an initial acupuncture visit shares the same level of validity as the “it is included in the comprehensive visit” defense for failing to pay for computerized range of motion. For those of you who do not get this sardonic humor, it is sufficient to say that there is no validity to this statement.
