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.

Final order of preclusion became automatic – no need to move for one

Ortho-Med Surgical Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 22119 (App. Term 2d Dept. 2012)

The “so-ordered” stipulation functioned as a conditional order of preclusion, which became absolute upon defendant’s failure to timely and sufficiently comply therewith (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; Blumenthal Chiropractic, P.C. v Praetorian Ins., 34 Misc 3d 135[A], 2011 NY Slip Op 52386[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Colonia Med., P.C. v Liberty Mut. Fire Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52283[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Nevertheless, plaintiff moved for a final order of preclusion. Although it was unnecessary for plaintiff to make such further application to the court, in doing so, plaintiff authorized the court to revisit the issue of preclusion and to consider defendant’s opposition thereto.

“A defendant’s preclusion from introducing evidence at trial does not automatically entitle a plaintiff to summary judgment or relieve the plaintiff of the burden of proving its case (see Mendoza v Highpoint Associates, IX, LLC, 83 AD3d 1 [2011]). In the instant case, plaintiff’s moving papers failed to establish a prima facie entitlement to summary judgment (see CPLR 4518; 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]; Dan Med., P.C. v New York Cent. Mut. Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the Civil Court properly denied the branch of plaintiff’s motion seeking summary judgment.”

“On appeal, defendant argues that it was not precluded from offering evidence in support of its cross motion for summary judgment because the so-ordered stipulation barred it only from offering evidence “at trial.” However, to allow defendant to use evidence in support of its cross motion which it is barred from introducing at trial “would perversely undermine the point of the order by allowing defendant to benefit from the short cut of summary judgment by use of the same evidence that otherwise would have been barred at trial”

Perhaps three observations can be divined from this case.  First, there is no need to formally move for a final order of preclusion.  Thus, it would be acceptable for the party who precluded his or her adversary to file a Note of Issue (Notice of Trial) with certificate of readiness and not worry about falsely responding in the affirmative to the statement: “All discovery is complete”.

Second, we already knew that the preclusion to offer evidence at trial carried over to summary judgment.

Third, what did Plaintiff need to show on motion to win?

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.

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