Tuesday, April 18, 2006

Once You Go to Arbitration You Can't Come Back to Court

In A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 2006 NY Slip Op 26131, decided March 17, 2006, Civil Court, Kings County, Judge Karen J. Rothenberg ruled that certain claims that were made by plaintiffs after proceding with arbitration could not be brought in court again citing Roggio v. Nationwide Mutual Ins. Co., 55 NY2d 260, 496 N.Y.S.2d 404 [1985]

If you handle arbitrations, you better read

Better Health Med. PLLC v Empire/allcity Ins. Co., 2006 NY Slip Op 50571(U) Civil Court Of The City Of New York, New York County. In this decision by Judge Thomas, while finding that this claim arose before the new regulations went into effect, the court did not find that the master arbitrator abused its discretion in upholding the award of the arbitrator finding claimant had no standing. "This Court finds that the determination by the arbitrator that fraud may be an issue in the processing of this claim does not constitute an arbitrary or capricious ruling nor is it incorrect as a matter of law."

Plaintiff's have things to prove too - about mailing.

On April 7, 2006, the Appellate Term, Second Department in
Staten Is. Chiropractic Assoc., P.C. v Long Is. Ins. Co.,
2006 NYSlipOp 50588(U),that where plaintiff merely said that it timely mailed the bills to the defendant, where the defendant said it did not receive them, this was inadequate to prove mailing.

Plaintiff's production of an any and all denial did not prove mailing of that particular bill.

Just because they don't show at the EUO....

The Regulation giveth and the court taketh away. At least sometimes it seems that way to the defense bar. The New Regulations permit insurers to deny claims for failure of a claimant or assignor to appear for Examinations Under Oath. Courts, however, have held that the insurer must include language promising reimbursement for expenses. Now it seems that the courts are imposing an additional burden or two.

In Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department affirmed an order granting plaintiff summary judgment finding that defendant failed to attach the EUO endorsement to its papers, failed to set forth proof in admissible form as to the mailing of EUO Notices.

The Public Policy is Strong with you Defendant

In New York & Presbyt. Hosp. v Auto One Ins. Co., 2006 NY Slip Op 02509, decided April 4, 2006, defendant's seeking to vacate defaults may have gotten a little help with the Appellate Division's Second Department's decision upholding a Supreme Court decision granting defendant an order vacating plaintiff's judgment.

We're Exhausted, You're Out of Luck Plaintiff

In New York and Presbyterian Hospital v. Allstate Insurance Company, 2006 NY Slip Op 02731 (Decided April 11, 2006), the Appellate Division, Second Department reversed summary judgment for plaintiff finding that Allstate had made a prima facie showing that it was entitled to summary judgment on its cross-motion by presenting an affidavit, a timely denial and payment log to other providers.

Friday, April 07, 2006

Blogrolling, 2d Ed.

As Nicole Black points out in a comment to the previous post, her blog Sui Generis mentioned us recently and also added us to her blogroll for New York Law Blogs. Her blog, much like Matthew Lerner's New York Civil Law blog, is a terrific resource for practitioners in NY. Nicole also has lively daily Define That Term trivia questions, and the occasional cartoon/joke/etc. Both Nicole's and Matthew's blogs can be found on our blogroll on the right side of this post.

I am certain, however, that both of them will be looking to us to answer insurance law questions that are over their heads. ;)

Wednesday, April 05, 2006


Thanks to Matthew Lerner for announcing our blog on New York Civil Law. We have a permanent link to his site here, and highly recommend it.

What is Full Faith and Credit, Counselor?

Plaintiffs might be happy to be in Judge Thomas' courtroom in Civil Court, Kings County, but others might not be so lucky.
In Capri Med., P.C. v New York Cent. Mut. Fire Ins. Co. 2006 NY Slip Op 50538(U), decided on March 30, 2006, Judge Delores J.Thomas granted plaintiff's motion for summary judgment, in part because the affidavit of the accident reconstructionist was done out of state and lacked a certificate of conformity.

Anyone know of any cases going the other way?

Tuesday, April 04, 2006

Folks in Albany are Talking About No-Fault

Those of us who practice have to deal with the law as it is, and how it develops before the courts. Most of us rarely look at the bigger picture or bills that have not yet become law. It may interest some of you to know what legislators are thinking about.

If any of this interests you, check out the bill submitted by A. Grannis in the Senate on March 31, 2006 as bill A10545 reducing the statutory interest amount to 1% and requiring all first party no-fault suits to be submitted to arbitration. Check out http://public.leginfo.state.ny.us/menuf.cgi and put in "no-fault."

What do you think of Grannis bill?

Plaintiffs MSJ must say not denied within 30 days

In a recent case decided in Kings County, Judge Bluth held that plaintiff was not entitled to summary judgment as there was no averment in a supportive affidavit or similar paper that they claims were not denied within 30 days. In New York Craniofacial Care, P.C. v Allstate Ins. Co., plaintiff provided proof that the bill had not been paid and supportive affidavits included language to that end. They did not, however, include any mention that the claims were not denied within 30 days.

If you didn't do the work, get out of court.

Plaintiffs may not recover for services of an independent contractor.
In Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co., 2006 NYSlipOp 50521(U) on March 30, 2006, the Appellate Term, First Department affirmed a decision granting defendant summary judgment on these grounds. See also: A.B. Medical Services PLLC v Liberty Mutual Ins. Co., 9 Misc 3d 36 [2005])