Archive for June 27th, 2012

Malella and priority of coverage discovery disallowed

Pomona Med. Diagnostic P.C. v Adirondack Ins. Co., 2012 NY Slip Op 51165(U)(App. Term 1st Dept. 2012)

Defendant appeared to work under a novel theory that it could use discovery to figure out who is primary and, in the alternative, to find out if Plaintiff was fraudulentally incorporated.  Defendant’s attempt to obtain discovery on the first score was a loser, on the law.  Defendant’s attempt to obtain discovery on the second score was a loser, on the law.

“The defendant insurer’s motion to strike the notice of trial and compel discovery should have been denied. Insofar as defendant sought discovery pertaining to its affirmative defense that another insurance carrier was primarily liable, the information was immaterial and, in result, the demands were palpably improper (see Duhe v Midence, 1 AD3d 279 [2003]), since defendant cannot properly rely on this defense as a basis to deny plaintiff’s no-fault claim (see 11 NYCRR 65-3.12[b]; M.N. Denatal Diagnostics, PC v Government Empl. Ins. Co., 81 AD3d 541 [2011]). Nor has defendant set forth any case-specific allegations in support of its defense that plaintiff was fraudulently incorporated so as to justify discovery on this issue (cf. One Beacon Ins. Group, LLC v Midland Med. Care, PC, 54 AD3d 738 [2008]). Defendant “will not be allowed to use pretrial discovery as a fishing expedition when they cannot set forth a reliable factual basis for what amounts to, at best, mere suspicions” (Devore v Pfizer Inc., 58 AD3d 138, 144 [2009], lv denied 12 NY3d 703 [2009]).”

Assignor did not show up to his IME and EUO – double whammy

Unitrin has created this vacuum where the failure to control ones Assignor has spelled unabated doom to many a medical clinic.  Imagine having this conversation during that crazy period when the law was “the failure to attend an IME rebuts the presumption of medical necessity?” and the App. Term 1st Dept did everything in the power to avoid ruling on the merits of these cases?

(The commentator Captain America would probably think that it is unconstitutional to demand an innocent Assignor to be deposed and examined in accordance with the insurance policy upon which she is either the NI or the third-party beneficiary)

Dowd v Praetorian Ins. Co., 2012 NY Slip Op 51160(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) and examinations under oath (EUOs) 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]; 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, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).”

Electronic signatures unconditionally accepted

Martin v Portexit Corp., 2012 NY Slip Op 05088 (1st Dept. 2012)

Interestingly, my view of the law when I handled Rogy v. Mercury became the law in the First Department.  Perhaps, this is more of an academic issue in light of the fact that most of these electronic signatures now contain the appropriate language stating that it was placed at the request of the signor.

Here are the highlights:

“State Technology Law § 304(2) provides that “unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand” (see Wen Zong Yu v Charles Schwab & Co., Inc., 34 Misc 3d 32 [2011]; People v Johnson, 31 Misc 3d 145[A][2011]; Alpha Capital Anstalt v Qtrax, Inc., 26 Misc 3d 1234[A][2010]). CPLR 2106, which provides for affirmations by attorneys, physicians, osteopaths and dentists does not specifically provide that an electronic signature may not be used and that the signature may only be affixed by hand.

In Naldi v Grunberg (80 AD3d 1,12 [2010], lv denied 16 NY3d 711 [2011]), we held that the Legislature “appear[s] to have chosen to incorporate the substantive terms of E-SIGN [Electronic Signatures in Global and National Commerce Act, 15 USC § 7001 et seq.] into New York state law.” Notably, E-SIGN provides that where a statute requires a signature to be notarized, acknowledged, verified, or made under oath, “that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included . . . is attached to or logically associated with the signature or record” (15 USC § 7001[g]). In Naldi, we concluded that “E-SIGN’S requirement that an electronically memorialized and subscribed contract be given the same legal effect as a contract memorialized and subscribed on paper” is New York law. We therefore held that the terms “writing” and “subscribed” in General Obligations Law § 5-703 should be construed to include, respectively, electronic communications and signatures (80 AD3d at 12).

There is no sound reason to treat the term “subscribed” as used in CPLR 2106 any differently than it is used in the statute of frauds. The Second Department’s decision in Vista Surgical Supplies, Inc. v Travelers Ins. Co. (50 AD3d 778 [2008]), upon which the motion court relied in concluding that the doctors’ reports were inadmissible, is unpersuasive, and we decline [*3]to follow it. In that case, the Court held that the reports containing the computerized, affixed or stamped facsimiles of the physician’s signature failed to comply with CPLR 2106 in that there was no indication as to who placed them on the reports, or any indicia that the signatures were authorized (see also Rogy Med. P.C. v Mercury Cas. Co., 23 Misc 3d 132[A][2009]). However, requiring such additional information imports a requirement not contemplated or included in either E-SIGN’s provision for signatures made under oath (see 15 USC § 7001[g]), or State Technology Law § 304(2)[FN1]. Additionally, State Technology Law § 306 provides that in any legal proceeding where the CPLR applies, an electronic record or signature may be admitted into evidence pursuant to article 45 of the CPLR. Based upon the foregoing, we conclude that the electronic signatures complied with CPLR 2106, that the affirmations of defendants’ medical experts were admissible and that the affirmations should have been considered by the motion court.”

A judge in Supreme Nassau on a standard no-fault matter applies Unitrin

New York Methodist v. Country Wide, Sup Ct. Nassau Co. Index #: 3676/11

Nassau has been all over the place on the DJ front regarding the confusion between Westchester/Lincoln and Unitrin.  Yet, when the carrier is a defendant, it always seemed that Nassau County Supreme Court would apply Westchester/Lincoln.

Here is a very recent case where that Court found Unitrin to be controlling precedent.  The best line of the case is as follows: “[p]laintiff’s simple argument that Defendant failed to prove that the notices were mailed to the assignor or that the assignor failed to appear at any of the scheduled IMEs is without merit.”  I would use this language in all civil court opps.

Reverse Pan Chiropractic

So many people complain that the Pan Chiro line of cases represent a one-way street on the issue of medical necessity .  I remembered a case from 6 years ago that represented the same paradigm, “except the shoe being on the other foot”.

I would suggest a review of the below case including now retired Justice Golia’s concurrence below.

For those that do not know, Justice Golia has been replaced by Justice Martin M. Solomon.  And for what it is worth, Justice Solomon to the best of my knowledge will be the first judge to serve on any Appellate Court who presided in a Civil Court after the beginning of the no-fault litigation tidal wave that began in 2001-2002.

Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 10 Misc.3d 145(A)(App. Term 2d Dept. 2006)

From the Appellate Term 6 years ago

“In support of its motion for summary judgment to recover its $2,670.40 claim for MRIs provided to its assignor, plaintiff submitted defendant’s timely denial of claim form which included an unsworn peer review report dated March 2003, asserting the lack of medical necessity for the MRIs based upon a review of a doctor’s report dated March 19, 2003. However, also in support of its motion, plaintiff submitted another report from the same doctor, dated February 26, 2003, which asserted in sufficient detail the medical necessity for the MRIs. Since plaintiff’s moving papers asserted, in admissible form, the medical necessity of the MRIs, and defendant’s opposition papers failed to address plaintiff’s proof as set forth in the sworn February doctor’s report, defendant failed to raise any triable issue with respect to the lack of medical necessity. Consequently, plaintiff is entitled to summary judgment on its $2,670.40 claim.”

Golia, concur:

“In the case at bar, the plaintiff presented a medical report in its motion for summary judgment by a Dr. Raufov dated February 26, 2003. That document effectively rebutted the findings of the defendant’s peer review doctor who did not consider the February 26, 2003 report when making his findings that resulted in a denial of benefits form being served on the claimant.

Inasmuch as the defendant failed to address this issue in its opposing papers, the majority was correct in holding that plaintiff’s prima facie showing of medical necessity went unrebutted and therefore was deemed proven.”

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June 2012
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