Perl? Where are you? Not over here…

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).

Non-compulsory arbitration award vacated

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”

Mailing case – sent but never received

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).”

er of Government Empls. Ins. Co. v Morris
2012 NY Slip Op 03448

Service of papers in accordance with the CPLR should be considered even if not in accordance with the Kings County Civil Court briefing schedules

D & r Med. Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 50785(U)(App. Term 2d Dept. 2012).

“In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted on default inasmuch as the court refused to consider defendant’s opposing papers as well as its cross motion for summary judgment dismissing the complaint because, while the cross motion and opposing papers had been served 21 days before the return date of the motion, they were untimely pursuant to a briefing schedule set by the Civil Court. Defendant appeals from an order entered July 28, 2010 which denied its motion to vacate the default order entered December 8, 2009 and, upon vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment.”

“In the instant case, defendant proffered a reasonable excuse for its failure to timely submit its opposing papers and cross motion, and also set forth a meritorious defense to the action. Accordingly, the judgment is reversed, the order entered July 28, 2010 is vacated, defendant’s motion to vacate the order entered December 8, 2009, which had granted, as unopposed, plaintiff’s motion for summary judgment and had refused to consider, on the ground of untimeliness, defendant’s cross motion for summary judgment dismissing the complaint, and, upon such vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint is granted, and plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint are remitted to the Civil Court for a new determination.”

It is a logical result when you think about it.  As long as your follow the CPLR and there is no prejudice, where is the harm?

Again – prima facie

Top Choice Med., P.C. v Geico Gen. Ins. Co., 2012 NY Slip Op 50778(U)(App. Term 2d Dept. 2012)

“[p]roof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law”

“Here, plaintiff failed to demonstrate that defendant’s denial of claim forms were either untimely or without merit as a matter of law.”

The policy does not need to be included in the motion papers

Eagle Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50772(U)(App. Term 2d Dept. 2012)

“On appeal, plaintiff contends that these branches of defendant’s motion should have been denied because defendant never proved that the applicable automobile insurance policy contained a provision entitling defendant to EUOs. This argument lacks merit”

Affidavit deemed insufficient under a Pan Chiro analysis

Neomy Med., P.C. v American Tr. Ins. Co., 2012 NY Slip Op 50769(U)(App. Term 2d Dept. 2012)

“Since the affidavit by plaintiff’s supervising physician failed to justify with specificity the additional studies, it did not rebut the conclusions set forth in the peer review report. Thus, plaintiff failed to raise an issue of fact (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).”

Compare this to:  Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc.3d 129(A)(App. Term 2d Dept. 2010)(“In opposition to defendant’s motion, plaintiff submitted, among other things, a letter of medical necessity sworn to by the psychologist who had examined plaintiff’s assignor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered”

1) Does a treating doctor’s affidavit need to have less in it than a plaintiff peer doctor?

2) Has the quanta of evidence necessary to raise an issue of fact increased in two years since Quality v. Mercury?

I do not have an answer.

Court enforces summary judgment upon failure to make a prompt application to the comp. board

A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2012 NY Slip Op 50764(U)(App. Term 2d Dept. 2012)

“Plaintiffs appealed from so much of the order as denied without prejudice their motion for summary judgment and held the action in abeyance. On appeal, by order dated June 18, 2009, this court modified the District Court’s order “by striking the provision denying without prejudice plaintiffs’ motion for summary judgment and by remitting plaintiffs’ motion to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. In the event plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny plaintiffs’ motion and grant reverse summary judgment in favor of defendant dismissing the complaint unless plaintiffs show good cause why the complaint should not be dismissed” (A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75, 76 [App Term, 9th & 10th Jud Dists 2009]; see LMK Psychological Servs., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

Since plaintiffs did not demonstrate that a proper application for workers’ compensation benefits had been made in accordance with the Workers’ Compensation Law (see e.g. Workers’ Compensation Law § 33) within the time provisions set forth in this court’s order dated June 18, 2009, they failed to establish that they had complied with this court’s order. Accordingly, the order, insofar as appealed from, is affirmed.”

3404 and 3216 collide – well somewhat

“Plaintiff commenced this breach of contract action in 1998 to recover no-fault benefits for medical treatments she had received from healthcare providers for injuries she had sustained as a result of a motor vehicle accident. In July 1999, plaintiff withdrew her notice of inquest, and the case was apparently marked off the calendar. The parties then proceeded with discovery through May 2001. In April 2010, defendant served plaintiff with a 90-day notice. Plaintiff then attempted, within the 90-day period, to file a notice of trial.”

“Defendant’s cross motion to dismiss the complaint invoked CPLR 3404. However, as CPLR 3404 applies solely to cases in the Supreme or County Courts (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]), the Civil Court properly denied defendant’s CPLR 3404 cross motion to dismiss. We note that were the cross motion to be deemed as having been brought pursuant to CPLR 3216 seeking to dismiss for want of prosecution, it would have been premature [*2]since it was made prior to the expiration of the 90-day period. Thus, defendant’s cross motion was properly denied.

Two things seem apparent here.

1) The Court seems to be saying that although CPLR 3404 does not apply, one could use the 3216 procedure and probably prevail since a Plaintiff would never be able to make a showing that there was a reasonable excuse for its failure to promptly restore.

2) How much is the interest on this case?  12 years of compounded 24% per annum interest?

Denial and EOB is sufficient to preserve fee schedule defense

W.H.O. Acupuncture, P.C. v AIG Auto Ins., 2012 NY Slip Op 50755(U)(App. Term 2d Dept. 2012)

“Contrary to plaintiff’s sole contention, defendant’s denial of claim forms and the accompanying explanation of benefit forms were sufficient to apprise plaintiff that defendant was partially paying and partially denying its bills on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Accordingly, the order is affirmed”

I have to wonder if a “you failed to explicitly ask for judicial notice” argument would have worked?  It seems to be the flavor of the year at this Court.

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