Refused to blow and kept his license

Matter of Matter of Fermin-Perea v Swarts, 2012 NY Slip Op 03514 (1st Dept. 2012)

If you ever had the opportunity to fight a refusal hearing at DMV, you probably know how difficult it is to prevail.  This case is just unbelievable, but having defended DWI cases, it is a great tool to have in your arsenal if you can somehow grab a fact pattern like this:

“The arresting officer’s refusal report, admitted in evidence at the hearing, indicates that upon stopping petitioner because he was speeding, following too closely, and changing lanes without signaling, the officer observed that petitioner was unsteady on his feet, had bloodshot eyes, slurred speech and “a strong odor of alcoholic beverage on [his] breath.” However, the field sobriety test, administered approximately 25 minutes later, a video of which was admitted in evidence at the hearing, establishes that petitioner was not impaired or intoxicated. Specifically, the video demonstrates that over the course of four minutes, petitioner was subjected to standardized field sobriety testing and at all times clearly communicated with the [*2]arresting officer, never slurred his speech, never demonstrated an inability to comprehend what he was being asked, and followed all of the officer’s commands. Petitioner successfully completed the three tests he was asked to perform; thus never exhibiting any signs of impairment or intoxication.

Certainly, the contents of the arresting officer’s refusal report, standing alone, establish reasonable grounds for the arrest under the Vehicle and Traffic Law (Matter of Nolan v Adduci, 166 AD2d 277, 278 [1990] [police officer's testimony that operator of motor vehicle was exceeding the speed limit, driving erratically, and his breath smelled of alcohol constituted reasonable grounds to arrest him for driving under the influence of alcohol], appeal dismissed 77 NY2d 988 [1991]). However, where, as here, a field sobriety test conducted less than 30 minutes after the officer’s initial observations, convincingly establishes that petitioner was not impaired or intoxicated, respondent’s determination that there existed reasonable grounds to believe that petitioner was intoxicated has no rational basis and is not inferable from the record (Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400 [1984] ["If the agency's determination is not supported by substantial evidence or it constitutes a clearly erroneous interpretation of the law or the facts, it will be annulled"]). A field sobriety test is “accepted within the scientific community as a reliable indicator of intoxication” (People v Hammond, 35 AD3d 905, 907 [2006], lv denied 8 NY3d 946 [2007]). Here, the field sobriety test, conducted shortly after petitioner was operating his motor vehicle, which failed to establish that petitioner was intoxicated or otherwise impaired, leads us to conclude that respondent’s determination is not supported by substantial evidence.”

Permanent consequential and Significan Limitation non-suited despite Perl

Cirillo v Swan, 2012 NY Slip Op 03493 (3rd Dept. 2012)

“[d]efendant relied upon a sworn report from orthopedic surgeon Robert Hendler, who reviewed plaintiff’s medical records and found no objective evidence of pathology stemming from the accident. Indeed, plaintiff had significant neck and back pain due to injuries predating the accident, was found to have only nonspecific and mild pain after it, and was quickly cleared to return to work. Hendler’s own examination of plaintiff was “completely normal,” and he opined that plaintiff suffered no more than a neck or lower back sprain, or temporary aggravation of a prior condition that had fully resolved.  Defendant thus met her initial burden as to all claimed categories of serious injury….”

Triable issue of fact not raised:

(1) “MRIs of her spine revealed disc bulges and possible herniations, and opined that those conditions arose out of the automobile accident and left plaintiff permanently and significantly disabled. He did not, however, provide any explanation or objective medical basis for his belief that plaintiff’s limitations were unrelated to her several prior complaints for which she had received extensive treatment”

(2) “Gamberg, a spine pain management specialist, found that plaintiff sustained injuries in the accident and also quantified how they significantly limited her range of motion. His affidavit is nonetheless inadequate, however, in that he wholly failed to address plaintiff’s prior back condition and injuries; nor did he sufficiently describe the objective tests used to determine her limitations

If you read Perl, you would have to somewhat struggle to find how what are now deemed fact issues can still be deemed legal issues.  It is not as though I agree with Perl since it put New York somewhat on the same path as New Jersey after the DeProspero case, but the resistance from at least the Third Department is interesting.

90/180 discussion – interpretation of Perl.

Crawford-Reese v Woodard, 2012 NY Slip Op 03502 (3d Dept. 2012)

Interesting discussion on this 5102(d) topic. The evidence that Defendant presented in his 90/180 threshold motion:

The police report reflects that no injuries were reported at the accident scene and, although plaintiff sought medical treatment at a hospital emergency room eight days later complaining of pain in her chest, neck, shoulder and right knee, radiology reports from the hospital indicate calcification and arthritic changes, with no acute fractures or malalignment. Thereafter, several times over the next few months, plaintiff sought medical treatment for various complaints, including chest, head, neck, arm, hip and knee pain, but no limitation of range of motion was documented in the months following her accident, nor were there any recommendations for limitations on plaintiff’s work or activities. Diagnoses by various physicians who examined plaintiff during this period included muscle strain, tendinitis, mild arthritis, degenerative arthritis and obesity . Two independent medical examinations conducted on plaintiff by different doctors in 2007 found no disabilities that would limit her work status or daily activities. Significantly, plaintiff could not remember whether she had been working at the time of the accident or enrolled as a student but, in any event, no evidence was submitted demonstrating that plaintiff missed any time from work or classes as a result of her injuries”

[It is not always to say "I don't know" at the deposition.  It comes back to haunt you sometimes]  There was insufficient evidence in Plaintiff’s answering papers. But the conclusion of law is interesting:

“Further, although quantitative testing of an injury made years after an accident may be relevant to ascertain the severity of a permanent injury suffered by a plaintiff (see Perl v Meher, 18 NY3d 208, 217 [2011]), contemporaneous findings of injury are highly relevant to causation (see id. at 218) and to establishing the 90/180-day category of serious injury (see Houston v [*3]Hofmann, 75 AD3d at 1049; Tuna v Babendererde, 32 AD3d 574, 577 [2006]).”

The contemporaneous hurdle that was determined to be an issue of in Perl came back on this case as a barrier as a matter of law.

Right to confrontation trumps HIPPA

Since we have a  HIPPA compliant judge this term in the Bronx Civil Court, I found a case, albeit criminal, which while not on point, shows the limits of HIPPA:

People v Jaikaran,2012 NY Slip Op 03464 (2d Dept. 2012)

“Here, the hospital records were properly certified (see CPLR 4518[a]; CPL 60.10)  [MY NOTE: DID THEY MEAN 4518(c)] and they included several statements by the complainant wherein she told the hospital staff, inter alia, that she was not sexually active and that she had not been the victim of sexual abuse. These portions of the hospital records were admissible under the business records exception to the hearsay rule (see People v Ortega, 15 NY3d 610, 616-617). While the People argue that the hospital records were properly precluded on the ground that they were privileged (see CPLR 4504; CPL 60.10), a defendant’s Sixth Amendment right of confrontation can overcome a statutory privilege (see Davis v Alaska, 415 US 308, 319-320). The right of confrontation furnishes a criminal defendant with (1) the right physically to face those who testify against him or her, and (2) the right to conduct cross-examination (see Pennsylvania v Ritchie, 480 US 39, 51). In this case, the complainant’s statutory physician-patient privilege (see Dillenbeck v Hess, 73 NY2d 278, 283) is in direct conflict with the defendant’s constitutional right of confrontation. Therefore, under the circumstances, the policy underlying the statutory privilege “must yield to the defendant’s constitutional right of confrontation”

Again, HIPPA and privileges have their limits.  I think this case is right on point for that proposition.  As to its application to no-fault, I leave the application of this case to others out there.

4518(a) deals with certification?

Hazzard v Burrowes, 2012 NY Slip Op 03409 (2d Dept. 2012)

“Moreover, the police accident report was inadmissible, as it was not certified as a business record (see CPLR 4518(a)), and the statements by both the appellant and Burrowes were self-serving, did not fall within any exception to the hearsay rule, and bore upon the ultimate issues of fact to be decided by the jury”

4518(a) v. 4518 (c) ?

Brutal loss on a coverage case

Matter of Matter of AIU Ins. Co. v Veras, 2012 NY Slip Op 03116 (1st Dept. 2012)

“On June 4, 2005, respondent Veras and additional respondent Richard, who was driving a vehicle owned by additional respondent Wynder-Ortiz and insured by State Farm, were involved in an automobile accident. State Farm was not notified and did not learn of the accident from its insured. Nearly four years later, it learned of the accident from Veras, who served it with the judgment entered in his favor in the action he had commenced against Richard and Wynder-Ortiz. Although it completed its internal investigation and prepared letters of disclaimer within two weeks, State Farm waited another 15 days before sending out the letters. It was not error for the court to find this largely unexplained delay unreasonable (see Insurance Law § 3420[d]; First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 66 [2003]; Travelers Ins. Co. v Volmar Constr. Co., 300 AD2d 40, 42-43 [2002]; see also George Campbell Painting v National Union Fire Ins. Co. of Pittsburgh, PA, 92 AD3d 104 [2012]).”

So, notice of the accident is received after 4 years.  A judgment is entered and served upon State Farm.  Then, a decision is made to deny within 2 weeks.  Then 15 days were not explained.  After this, a disclaimer was sent, and this was insufficient?

“We reject State Farm’s argument that the delay was due to its investigation of other possible grounds for disclaiming. State Farm’s witness testified that the investigation was completed in two weeks. In any event, however, “just as we would not permit the insured to delay giving the insurer notice of claim while investigating other possible sources of coverage, [*2]we should not permit the insurer to delay issuing a disclaimer on a known ground while investigating other possible grounds for avoiding liability” (George Campbell Painting, 92 AD3d at 115).”

The failure to affirmatively seek judicial notice of the fee schedule (again) proves fatal to a motion for summary judgment

MIA Acupuncture, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 21480 (App. Term 2d Dept. 2012)

“With respect to the claims for acupuncture services rendered from May 31, 2007 through August 27, 2007, the affidavit of defendant’s claims examiner stated that these claims underwent a “fee schedule review” resulting in a reduction of the amount due therefor. This allegation alone was insufficient to establish defendant’s contention that the amounts charged by plaintiff for these acupuncture services exceeded the relevant rates set forth in the workers’ compensation fee schedule (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, defendant was not entitled to summary judgment with respect to these claims.”

The dissent.  I think we saw this in a prior dissent from Golia, J., but I think it probably makes sense.

“An advocate before any court need not supply it with physical copies of the laws upon which an argument is based to ensure that those particular laws are taken under consideration by this court. An advocate need only recite an argument involving a certain law; an attorney need only bring the relevant law to the attention of a court. Indeed, here it is enough that defendant alleged that the fee charged by plaintiff exceeded the relevant rates set forth in the fee schedule as prescribed by law. As such, I would remit this specific issue back to the lower court for a determination of the motion as to whether the proper fees were charged under the workers’ compensation fee schedule for the services rendered from May 31, 2007 through August 27, 2007, and whether appropriate payment was made thereon. I would also advise the motion court that it is obligated to take notice of the workers’ compensation fee schedule and all New York laws and regulations pertaining thereto.”

District Suffolk reversed – Oral applications to vacate a default are not appropriate

State Farm Mut. Auto. Ins. Co. v Young, 2012 NY Slip Op 50686(U)(App. Term 2d Dept. 2012)

“Upon defendants’ default in answering or appearing, an inquest was scheduled. Defendant Robert J. Young appeared at the inquest and orally sought to open his default and to serve and file an answer. By order dated March 4, 2011, the District Court granted the oral application, and defendant Robert J. Young filed a verified answer in which he stated that he was the “wrong person.” Thereafter, plaintiff moved to vacate the March 4, 2011 order or, in the alternative, for summary judgment. Plaintiff’s unopposed motion was denied by the District Court by order dated May 12, 2011, from which plaintiff appeals.”

“such application should have been supported by motion papers on notice to plaintiff (see CPLR 2214)”

This is not the first time I have seen this occur in that particular District Court.

Summary judgment granted under the new interpretation of prima facie

New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co., 2012 NY Slip Op 50681(U)(App. Term 2d Dept. 2012)

“The affidavit by plaintiff’s billing manager was sufficient to establish that the claim forms annexed to the motion papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C., 55 AD3d 644 [2008]; Fortune Med., P.C. v Travelers Home & Mar. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]), that the claim forms had been mailed to defendant within 45 days of the date services were rendered (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]), and that the basis for defendant’s denials, i.e., that “written proof of claim was provided more than 45 days after the date these services were rendered” was “without merit as a matter of law.” Contrary to defendant’s contention, it is not the date of defendant’s receipt of a claim form which determines whether the submission of a claim form is untimely, but rather the date of plaintiff’s submission of the claim form (see Insurance Department Regulations [11 NYCRR] § 65 – 1.1 ["the eligible injured person or that person's assignee . . . shall submit written [*2]proof of claim to the Company . . . in no event later than 45 days after the date services are rendered”]; see also SZ Med. P.C. v Country-Wide Ins. Co.,12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]; Ops Gen Counsel NY Ins Dept No. 04-02-12 [Feb. 2004]).”

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?

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