Deposition transcript v. errata sheet

Pollina v Oakland’s Rest., Inc., 2012 NY Slip Op 03991 (2d Dept. 2012)

“We note that the conflict between the plaintiff’s original deposition testimony and the correction sheet “raises an issue of credibility which may not be resolved on a motion for summary judgment” (Williams v O & Y Concord 60 Broad St. Co., 304 AD2d 570, 571; see Breco Envtl. [*2]Contrs., Inc. v Town of Smithtown, 31 AD3d 359, 360; Surdo v Albany Collision Supply, Inc., 8 AD3d 655).”

Assignment valid during unresolved lawsuit

Citibank, N.A. v Van Brunt Props., LLC, 2012 NY Slip Op 03974 (2d Dept. 2012)

In the world of multiple assignments, it is sometimes asked whether you can assign a chose of action or an interest in something after the commencement of a lawsuit?  The answer is “yes” and an order concomitantly amending the caption is also deemed proper:

“Finally, contrary to the defendant mortgagor’s contention, the documents submitted by the plaintiff established that the subject note and mortgage were validly assigned to Wells Fargo Bank, N.A., after the commencement of this action, and that Wells Fargo Bank, N.A., is therefore now the real plaintiff in interest. Under these circumstances, the Supreme Court should have granted the plaintiff’s motion to substitute Wells Fargo Bank, N.A., as the plaintiff in this action, and to amend the caption accordingly (see CPLR 1018, 3025[b]; Deutsche Bank Trust Co., Americas v Stathakis, 90 AD3d 983; Maspeth Federal Savings and Loan Ass’n v Simon-Erdan, 67 AD3d 750, 751; East Coast Props. v Galang, 308 AD2d 431).”

90/180 claim has serious consequences despite 5102(d) dismissal of permanent consequential and significan limitation

I am putting by Bodily Injury hat on this one.  There are few issues in 5102(d) land that intrigue me as much as the newest prima facie jurisprudence.

For instance, is it logical for an appellate court to knock out the permanent consequential and significant limitation categories, find a triable issue of fact on 90/180 and then state the following:  “We note that if plaintiff ultimately prevails on her 90/180-day claim, she will be ‘entitled to recover damages that justly and fairly [*2]compensate . . . her for all injuries proximately caused by the accident” (Rubin v SMS Taxi Corp., 71 AD3d 548, 549-550 [2010]; see Delgado v Papert Tr., Inc., 93 AD3d 457 [2012]).’”

Think about how ridiculous this sounds.  A court says you have no permanent or significant injuries, yet allows a jury to award damages on all injuries under the non-permanent 90/180 threshold category?  I know I am a defense attorney and I try these cases so perhaps I am biased.  Still, does this make sense?

I think Article 51 of the Insurance Law has spawned a level and degree of insanity that can hardly be explained.

Still practicing

Matter of Antomattei, 2012 NY Slip Op 03929 (1st Dept. 2012)

Three DWI’s (one of which was a felony knock down) and he is still fit to practice law.  This one just had me shaking my head.

Funny joke – but not sufficient for recusal

Glatzer v Bear, Stearns & Co., Inc., 2012 NY Slip Op 04080 (1st Dept. 2012)

“The trial court’s generalized comments comparing judicial salaries to first year attorney salaries as recently reported in the news, coupled with an attendant joke that he might have to seek employment with defendants’ counsel’s law firm, stand in stark contrast to the facts in Caperton v A.T. Massey Coal Co., Inc. (556 US 868 [2009]), relied upon by plaintiff, in which the president and chief executive officer of a corporation appearing as a defendant before the judge against whom recusal was sought had contributed some $3 million to his election campaign and at issue was a $50 million judgment against the defendant corporation.”

I think the trial justice probably raised a good point.

May 2309(c) finally rest in peace.

Fredette v Town of Southampton, 2012 NY Slip Op 03595 (2d Dept. 2012)

“it improvidently exercised its discretion in excluding from consideration the affidavits of Ken Glaser and Kris Kubly on the ground that the affidavits, while notarized, were not accompanied by a certificate of conformity required by CPLR 2309(c). This Court has previously held that the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect (see Smith v Allstate Ins. Co., 38 AD3d 522, 523), a view shared by the Appellate Division, First and Third Departments as well (see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672 [1st Dept]; Sparaco v Sparaco, 309 AD2d 1029, 1031 [3d Dept]; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833 [3d Dept]; see also Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2309:3).”

Mailing not proven through witness that was not present when items was deposited into the trusty USPS

Exclusive Physical Therapy, P.C. v MVAIC,  2012 NY Slip Op 50862(U)(App. Term 2d Dept. 2012)

“We note that, in his affidavit, defendant’s claims representative stated that he had begun working for defendant after the denial of claim forms at issue had allegedly been mailed by defendant. Consequently, defendant failed to show that its denial of claim forms had been timely mailed”

I suspect one cannot travel in time capsule to learn how the process used to be.  Logical.

The failure to respond to an EUO letter non-suits another DME provider

Leica Supply, Inc. v Encompass Indem. Co., 2012 NY Slip Op 50890(U)(App. Term 2nd Dept. 2012)

Plaintiff’s argument that its assignor’s failure to appear for the duly scheduled EUOs permitted only the denial of pending claims is without merit (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Moreover, plaintiff does not claim to have responded to the EUO requests; therefore, plaintiff’s objection on appeal regarding those requests will not be heard

The next issue to be tackled: What happens when Plaintiff responds to the EUO demands and still fails to attend the EUO?  Do we finally reach a reasonableness analysis?  I would say I can hardly wait, but it is the lack of certainty that makes reading these decisions interesting.  As each gap gets filled, this sometimes becomes an exercise in who can cite the most principles of law.

IME no-show defense defeated based upon affidavit issue – prima facie denied based upon a denial which Defendant did not prove was mailed

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co.,  2012 NY Slip Op 50880(U)(App. Term 2d Dept. 2012).

An affidavit executed by defendant’s litigation examiner demonstrated that denial of claim forms, which denied the claims at issue in the first, second, fourth and fifth causes of action based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). However, the affidavit did not address the claim at issue in the third cause of action. As a result, defendant established its prima facie entitlement to judgment as a matter of law as to the first, second, fourth and fifth causes of action”  (At this point, Defendant wishes he could rely on Unitrin)

“The branch of plaintiff’s cross motion seeking summary judgment on the third cause of action should have been denied as well, as plaintiff failed to demonstrate that defendant’s denial of claim form, which was attached to plaintiff’s cross motion, was not timely mailed to plaintiff, or that it was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 (a)”

Acupuncture fee schedule defense upheld

Raz Acupuncture, P.C. v New S. Ins. Co., 2012 NY Slip Op 50865(U)

“The affidavits submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied (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]) plaintiff’s claims on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule.”

Another great appeal.  Mr. Five Boro would be proud.

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