Wednesday, December 27, 2006

2007: What the *%$! is Going On?

The reader is directed to No-Fault Paradise, a new entry in the highly-specific genre of New York no-fault automobile insurance law blogs from David M. Gottlieb, Esq., an attorney at Edward Shapiro, P.C., a prolific no-fault plaintiff's firm. Mr. Gottlieb's Civil Court, Queens County, Room 101 Seating Chart is both completely accurate and incredibly funny.

Thanks much also to a recent anonymous poster for some lively debate on the recent Appellate Division, 2d Dep't decision in Fogel v. Progressive.

In a bit of housekeeping news, please note that Erik B. Lutwin, Esq. has moved on in his professional career. Your humble blawger wishes Mr. Lutwin well. For the time being, I am the sole contributor to this blawg, but Mr. Lutwin was the one who got the ball rolling here, and he also devised the catchy title. Not having a fellow contributor makes the device of using the royal "we" that much more of a contrivance, so you'll forgive me if I continue to do so now and again.

Happy various holidays to all, and a Happy New Year, as well. Thanks especially to the two biggest long-running supporters of my site, Matthew S. Lerner, Esq. of New York Civil Law and Nicole L. Black, Esq. of Sui Generis. They provide much more traffic my way than the other way around, I'm sure, and I'm grateful for how often they feature my posts.


It's that time again, right
Kick out the old, welcome the new
Make your New Year's resolutions now!


(And a very Happy New Year from BBC1)

Wednesday, December 20, 2006

Fogel: Out

As 2006 draws to a close, the Appellate Dvision, 2d Department has given us one of the most important no-fault decisions of the year. In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 2006 NY Slip Op 09604 (App. Div, 2d Dep't, 2006), a unanimous Court overturned that portion of the prior Appellate Term, 2d Dep't decision that held that an assignor's failure to appear for an independent medical examination ("IME") prior to the subject services having been rendered results only in a rebuttal of the presumption of medical necessity in the favor of the plaintiff provider. Instead, although agreeing with the concurrence/dissent of Golia, J. in the App. Term Fogel case and the Appellate Term, 1st Department decision in Inwood Hill Med., P.C. v General Assur. Co., 2005 NYSlipOp 25437 (App. Term, 1st Dep't, 2005), the App. Div. has gone even further. They now hold that failure to appear at an IME is a violation of a condition precedent to no-fault coverage, regardless of when the no-show occurred as compared with the date(s) of service of a given claim. Indeed, the App. Div. now holds that a carrier may deny claims "retroactively to the date of loss" when a no-show occurs.

This has numerous potential implications. A denial of coverage retroactive to the date of the loss should render the defense one that survives preclusion regardless of whether it is preserved in a timely denial of claim form. See generally, Central General v. Chubb, 90 N.Y.2d 195 (1997). Other explicit conditions precedent to coverage listed in the PIP Endorsement (11 NYCRR § 65-1.1) should also be subject to the same rule.

Tuesday, December 12, 2006


A special thanks to JDjive for passing along a bunch of traffic this morning to my incredibly lame blog. Many of the visitors who clicked over here have spent a significant amount of time looking at various posts, reading the cited case law, etc. I'm thinking the intended insult had the opposite effect, but I'm sure I'm too lame to understand the difference...

In other news, the Appellate Division, Second Department will hear the appeals in Fair Price a/a/o Novelo v. Travelers on 12/14/06 and Mandarino v. Travelers on 12/19/06.

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.