Tuesday, December 05, 2006

Keeping It Real, Part II

By way of a long-overdue sequel in this occasional series of posts, the reader is directed to the recently-published decision in Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2006 NYSlipOp 26483 (App. Term, 2d Dep't, 2006) as the latest example of the Appellate Term applying real law rather than fashioning some other rule purportedly designed to conform to the legislative intent of no-fault.

In particular, the Dan Med. decision stands for the proposition that a motion for summary judgment must be supported by evidence in admissible form sufficient to demonstrate the absence of any triable issues of fact. As a result, in order to demonstrate prima facie entitlement to summary judgment, a no-fault plaintiff must proffer the relevant claim forms in a manner that complies with the business record exception to hearsay in CPLR R. 4518. Upon a failure to proffer such evidence in support of plaintiff's motion for summary judgment, same is to be denied. This is true regardless of whether plaintiff has proven that such forms were submitted to and received by the insurance carrier; while something may have been submitted and received, that something must also be put forth in admissible form.

Note that, in order for the issue to be preserved for appeal, a defendant must raise those defects in plaintiff's proof in their written opposition. Should defendant fail to raise such defects on the record, an appellate court is unable to review a lower court's determination that plaintiff's motion was sufficient. See Bath Med. Supply, Inc. v Allstate Indem. Co., 2006 NYSlipOp 52273(U) (App. Term, 2d Dep't, 2006), concurring opinion of Weston Patterson, J.

On the other hand, in certain circumstances, the Appellate Term still continues to impose artificial (unreal?) law that appears to have no particular basis in statutory law or the regulations, and indeed may even be contrary to the plain text of such. See, e.g., Boai Zhong Yi Acupuncture Servs. P.C. v Progressive Cas. Ins. Co., 2006 NYSlipOp 26485 (App. Term, 2d Dep't, 2006). The reader is directed in particular to the lengthy (purported) concurrence therein of Golia, J.

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