Mr. Five Boro at it again

Five Boro Psychological Servs., P.C. v MVAIC, 2012 NY Slip Op 50677(U)(App. Term 2d. Dept. 2012)

The Mr. Five Boro award now goes to……Mr. Five Boro.

“The affidavit submitted by plaintiff’s billing and collection supervisor in support of plaintiff’s motion for summary judgment was insufficient to establish plaintiff’s prima facie case (see CPLR 4518 [a]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Accordingly, plaintiff’s motion for summary judgment was properly denied.”

Do you think if Mr. Five Boro had to pay $2,300 (the average cost of a record on appeal if given to a printer to do) instead of proceeding in the original record, he would have perfected such a meritorious appeal?

Motion to renew and then some

DeMarquez v Gallo, 2012 NY Slip Op 03130 (2d Dept. 2012)

How many times have you seen this?

“[p]laintiffs’ motion to restore the action to the trial calendar is granted, and the action is restored to the trial calendar for an immediate trial without any further motion practice related to the restoration of the action.”

1) “After the plaintiff filed a note of issue, on May 15, 2001, the parties appeared in the jury scheduling part to select a jury. On that day, the Supreme Court directed the transfer of the action to Civil Court, Kings County, pursuant to CPLR 325(d). Due to a clerical error, the case was inadvertently marked off the trial calendar rather than transferred to the Civil Court.”

2) “Upon discovering this clerical error, the plaintiff moved to restore the case to the trial calendar. The Supreme Court denied that motion in an order dated August 18, 2004. The plaintiff appealed and, by decision and order dated May 23, 2006, this Court reversed the order dated August 18, 2004, vacated the dismissal of the action, and restored the action to the trial calendar (see DeMarquez v Gallo, 29 AD3d 853).”

3) “Subsequent to this Court’s decision and order dated May 23, 2006, restoring the action to the trial calendar, the plaintiff was erroneously informed by a clerk of the Supreme Court that she had to move again to restore the action. As a result, the plaintiff made a subsequent motion to restore the action, relying upon this Court’s decision and order dated May 23, 2006. The Supreme Court denied the plaintiff’s motion in an order dated August 4, 2009. [*2]

After first moving unsuccessfully to reargue the motion to restore, the plaintiff moved for leave to renew her motion to restore the action to the trial calendar. In the order appealed from, the Supreme Court denied the plaintiff’s motion for leave to renew. The plaintiff appeals and we reverse.

[discussion of leave to renew]

This one amazed me when I read it.  Does anyone on “motion day” in Supreme Kings spend the time to read the motion papers?  Or, is it more important to shoot our SFO’s after “oral argument” and “due deliberation”?  Just a thought,

Renewal is allowed to correct 2106 hiccups

Schwelnus v Urological Assoc. of L.I., P.C., 2012 NY Slip Op 02858 (2d Dept. 2012)

The Supreme Court improvidently exercised its discretion in denying the defendants’ motion for leave to renew their motion for summary judgment dismissing the complaint on the ground that the defendants’ motion was not based upon new facts not offered on the prior motion. CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form (see Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389; [*2]see also Coccia v Liotti, 70 AD3d 747; Arkin v Resnick, 68 AD3d 692). The defendants corrected their inadvertent procedural errors with respect to the transcripts and provided a reasonable justification for failing to present the transcripts in admissible form in support of their motion for summary judgment such that leave to renew should have been granted (see Darwick v Paternoster, 56 AD3d 714; DeLeonardis v Brown, 15 AD3d 525).

Mark it up, fax it back and see what happens

Preferred Servs. v Country Wide Ins. Co., 2012 NY Slip Op 22098 (App. Term 1st Dept. 2012)

“Upon receipt of plaintiff’s proposal, defense counsel made and initialed several handwritten changes to paragraph 2 of the document — addressing the consequences of a payment default on defendant’s part — with the changes designed to extend the time allotted to defendant to comply with the agreement’s payment terms and, more importantly here, to reduce defendant’s payment obligations in the event it failed to comply. So far as shown, plaintiff voiced no objection to the modifications proposed by defendant or took any other action in the case for a full six months after defense counsel marked up and returned the stipulation, until March 2009, when plaintiff entered judgment in accordance with the original terms of the stipulation favorable to it.

“since plaintiff itself acknowledges that the parties’ correspondence yielded an enforceable settlement agreement, we conclude that plaintiff, through “acquiescent conduct” (Eldor Contr. Corp. v County of Nassau, 272 AD2d 509 [2000]) — including its election to forego any further litigation activity on its no-fault claim — accepted and is bound by the stipulation’s revised terms”

Well, somebody figured out how to limit the liquidated damage provision portion of the stipulation…

5102(d) and a dissent discussing “no-fault”

Ramkumar v Grand Style Transp. Enters. Inc., 2012 NY Slip Op 02597 (1st Dept. 2012)

Plaintiff in a 5102(d) action must prove that (s)he was cut off from no-fault and that (s)he had an inability to pay the ensuing medical bills…

“Plaintiff’s accident occurred on April 8, 2007 and he underwent arthroscopic surgery on his right knee on June 29, 2007. As of July 5, 2007, plaintiff’s orthopedic surgeon recommended physical therapy. When asked when he last received physical therapy, plaintiff testified that he was “cut off” five months before his July 2008 deposition. Therefore, the record gives no indication that plaintiff received any medical treatment during the 24-month period before he submitted answering papers to defendants’ motions. We assume, as the dissent does, that there are limits to the amount of no-fault coverage for medical services such as physical therapy. The inquiry, however, does not end there. A bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds (see e.g. Gomez v Ford Motor Credit Co., 10 Misc 3d 900, 903 [Sup Ct Bronx County 2005]; see also Salman v Rosario, 87 AD3d 482 [2011]; Jacobs v Rolon, 76 AD3d 905 [2010]). Plaintiff, who was employed and living with his parents, gave no such indication. Also, the dissent’s theory that “[i]njuries are not always treatable by physical therapy” is speculative and finds no support in the record.”

And now the dissent

“In support of imposing such an obligation on plaintiff, the majority cites Salman v Rosario (87 AD3d 482 [2011]) and Jacobs v Rolon, 76 AD3d 905 [2010]), in which this Court accepted the explanations provided by the plaintiffs that once their no-fault benefits stopped, they could not afford to pay for continued medical care. There is nothing incorrect about these rulings, but they were never intended to establish the minimum acceptable explanation as contemplated in Pommells v Perez.

Also offered in support for the majority’s ruling is a lower court decision in Gomez v Ford Motor Credit Co. (10 Misc 3d 900, 903 [Sup Ct Bronx County 2005]). The court in Gomez analyzed the requirements set out in Pommells v Perez and concluded that a plaintiff’s burden of explaining a gap or cessation in treatment was not satisfied by the explanation that no-fault benefits had been discontinued. The court there held that the plaintiff was required to submit substantiation for the assertion that no-fault benefits were discontinued, adding that “[a]t the very least, counsel for plaintiff should have provided a letter from the insurance carrier as to when and why the carrier discontinued coverage” (id.). It termed an unsubstantiated claim “conclusory and nonprobative” (id.). It then went even further, blaming the plaintiff for failing to “provide[] an [*6]explanation as to why he could not have continued treatment paid out of his own pocket” (id.).

This proposed requirement in Gomez of “substantiation” of the plaintiff’s explanation for the cessation of treatment would engraft onto § 5102(d) an unfair and unreasonable standard of proof. Anyone who has ever dealt with no-fault carriers would understand the likely futility of obtaining the suggested letter from them. The onerous nature of the Gomez requirements is highlighted by the companion requirement suggested there — one that seems to be adopted by the majority here — requiring a plaintiff to “explain” why he could not have paid out of pocket to continue his treatment when insurance benefits terminated. If we were to adopt such a requirement, a plaintiff with a substantial, lasting injury that was not healed during the course of the covered therapeutic treatment, would not be entitled to proceed with a lawsuit unless and until the plaintiff either dug deep into savings to pay for continued therapeutic treatment, or explained why his or her financial circumstances did not permit it. Indeed, consistent with Gomez‘s proposed “substantiation” requirement, proof of the plaintiff’s financial condition would be necessary.

The fact of the matter is that for most people, when insurance coverage ends, treatment ends. Very few people have the means to pay the substantial fees that the uninsured are charged for medical care. People who are employed have regular expenses on which they must spend their earnings; even people with savings most often have plans for the use of those funds. The right to sue for a serious injury cannot be predicated on the plaintiff paying those substantial fees out of pocket, assuming that the funds exist.

The search for the mystical Torres, and the hunt to obtain post-appellate renewal

Abrams v Berelson, 2012 NY Slip Op 02618 (2d Dept. 2012)

Plaintiff attempted to renew a lost motion for summary judgment in a premises liability case, 12 years after the lost motion.  The Court affirmed the denial of renewal and in a 3-2 decision stated:

“Many of the efforts made by the plaintiffs and other individuals to locate Torres, which are relied upon by the dissent, occurred after the defendant’s motion for summary judgment was decided, and, therefore, do not constitute reasonable justification for their failure to present Torres’ affidavit “on the prior motion” (CPLR 2221[e][3]). Moreover, the plaintiffs, who did not move to vacate the judgment until six months after locating Torres, failed to meet their “heavy burden” of showing due diligence in presenting the new evidence to the Supreme Court once it was obtained”

The dissent is interesting, and even held that Plaintiff satisfied the following:

“Pursuant to CPLR 2221(e), a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination . . . and . . . shall contain reasonable justification for the failure to present such facts on the prior motion’” (Andrews v New York City Hous. Auth., 90 AD3d 962, 963, quoting CPLR 2221[e][2], [3]). “[O]n [a] postappeal motion [to renew] the [movant] bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court in order to imbue the appellate decision with a degree of certainty” (Andrews v New York City Hous. Auth., 90 AD3d at 963 [internal quotation marks omitted]; see Estate of Essig v 5670 58 St. Holding Corp., 66 AD3d 822, 823; Levitt v County of Suffolk, 166 AD2d 421, 423). ” A motion for leave to renew is addressed to the sound discretion of the court’” (Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 100, quoting Matheus v Weiss, 20 AD3d 454, 454—455; see Lardo v Rivlab Transp. Corp., 46 AD3d 759, 759; Mi Ja Lee v Glicksman, 14 AD3d 669, 670).”

So the newest 2309(c) case now holds that this statute is irrelevent

U.S. Bank Natl. Assn. v Dellarmo, 2012 NY Slip Op 02481 (2d Dept. 2012)

“The plaintiff’s failure to comply with CPLR 2309(c) in submitting various documents, including, among others, the corrective assignment, which were notarized outside the state but not accompanied with a certificate in conformity with CPLR 2309(c), was not a fatal defect, as such certification may be provided nunc pro tunc”see CPLR 2001….”

Prima facie gone bad

Complete Radiology, P.C. v Progressive Ins. Co., 2012 NY Slip Op 50583(U)(App. Term 2d Dept. 2012)

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof 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 (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Here, plaintiff’s affidavit failed to state unequivocally that defendant’s denial of claim forms were either untimely or without merit as a matter of law.”
Cases like this make AAA a lot of money.

Another prima facie disaster in the second department

Flatlands Med., P.C. v Allstate Ins. Co., 2012 NY Slip Op 50582(U)(App. Term 2d Dept. 2012)

“Although plaintiff established that defendant had not paid plaintiff’s claims, plaintiff failed to show that the claims had not been denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law”

I just do not know how a Plaintiff in the Second Department can obtain 3212(g) relief.  It seems to me that prima facie may be an all or nothing proposition nowadays in the Second Department.

An attorney’s statement, i.e., “he did not show up” is sufficient to support EUO defense

Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 2012 NY Slip Op 50579(U)(App. Term 2d Dept. 2012)

“Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs”

The latest line of attack in the IME no show and EUO no show wars has been the allegation that the affiant did not set forth a sufficiently detailed affidavit, proving that the claimant failed to attend his EUO’s.

In the case where the partner at the law firm swears out an affidavit that the Claimant did not show based upon the firm’s business practices, this is correct.  Where the affidavit, however, is based upon the affidavit of the person hired to conduct the EUO or IME, this type of elaborate business practice is not necessary.  Rather, a perfunctory attestation that the affiant was there and the Claimant failed to show would be sufficient.

Contact Jason Tenenbaum
(516)750-0595 (T) (516)414-2869 (F)
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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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