I Always Feel Like Somebody's Watching Me

In Delta Diagnostic Radiology, P.C. v Chubb Group of Ins, 2007 NYSlipOp 27345 (App. Term, 2d Dep't, 2007), the Appellate Term has finally made explicit, as I previously argued on this blog, that a party need not produce an affidavit from someone whose duty it is to ensure compliance with standard procedures when attempting to create a presumption of mailing. Rather than expressly overturning their own prior decisions on the matter, the App. Term simply stated that such prior decisions "should not be interpreted" as saying what they obviously say. In any event, I'm glad that the issue was finally presented for appeal. We'll see how long it takes for this ruling to filter its way down to the Civil and District Courts.

Shock the Conscience

In a decision of likely interest to defense counsel, Judge Howard S. Miller of the District Court, Nassau County, Hempstead Part issued a Decision/Order concerning settlement stipulations often done by the law firm of Israel, Israel & Purdy, LLP. See Omega Diagnostic Imaging, P.C. v State Farm Mut. Ins. Co., 2007 NY Slip Op 51405(U) (Dist. Ct., Nass. Cty., 2007). Typically, Israel puts a clause in their settlement stips that provide that, should the settled-for amount not be paid within 30 (or however many) days, judgment will be entered for the full amount demanded in the Complaint, including full statutory interest, et al.

Judge Miller held (correctly, in my opinion) that there is no basis to stay enforcement of the portion of the stipulation in question. The Court cited to ABCO Refrigeration Supply Corp. v Designs by Keiser Corp., 239 A.D.2d 165 (1st Dep't, 1997) for the proposition that, there being no allegation of fraud, mistake, etc., there is no basis to vacate a stipulation that essentially calls for the defendant to pay the full amount of the Complaint.

State Farm, by Picciano & Scahill, P.C., cited to some Second Department case law for the proposition that unconscionable stipulations should not be enforced. Judge Miller found State Farm's cited case law to be distinguishable and/or sui generis. In any event, Judge Miller found that $2,578, the difference between the settled-for amount and the amount of the judgment, did not shock the Court's conscience.

Those Israel settlement stips are potentially dangerous, to be sure, but things would work a lot more smoothly on a lot of fronts if the carriers made payments quickly, anyway.

Barnes & No-fault

According to the sidebar on David M. Gottlieb, Esq.'s blog, No-Fault Paradise, he's currently re-reading David Foster Wallace's 1996 novel 'Infinite Jest'. I admire that Mr. Gottlieb is still able to get any reading done; I have had a tough time of keeping at it since law school. I also admire that he has been able to finish 'Infinite Jest' (more than once?) and wants to go back for more. I tried starting it a few times, the most recent being August 14, 2003, when the Northeast had a blackout. Somehow it fails to grab me enough. I found Wallace's debut novel, 1987's 'The Broom of the System,' to be a bit more agreeable. I think I finished it, or at least came close.

As to my avoidance of 'Infinite Jest,' I would confess that I am afraid of Big Important Novels, but I don't think it's true. I spent much of my law school years (and tapering off thereafter) chewing up books like 'J R' and 'A Frolic of his Own' by William Gaddis (I think I got through the first chapter or two of 'The Recognitions' at one point), most everything by Don DeLillo, Thomas Pynchon's 'V.', most of the core works of Thomas Bernhard (which I guess don't quite qualify as 'big'), and even wannabe fare like Jonathan Franzen's 'The Corrections.' Then again, despite owning perhaps several hundred books, I can no longer seem to sit down and actually read any. Oddly enough, the subway commute I had during most of law school (Williamsburg<-->Greenwich Village) provided an ideal, structured time for plowing through books at a decent pace.

Carsherchesputin

I just wanted to bring to the top a comment posted last night to an old post on this blog:

At Tuesday, July 17, 2007 8:45:00 PM, Anonymous said...

Things have been heating up in the Carothers, Sher, Chess and Rasputin arena as the connections we all know exist are surfacing so ever slightly...What an industry this No Fault Insurance is Very challenging to prosecutors and law enforcement..sometimes too challenging LOL

While one of those references may seem a bit obtuse, it does all fit together, one way or another. I have no clue who our anonymous commenter is, but he/she is more than welcome to continue contributing, preferably to more recent and visible posts. :)

Giving Someone a Widgie

Below please find a new widget I have created for the blog. Feel free to click "copy me" (which can be found when you mouseover the widget's title bar) and embed on your own site or blog. (Don't worry, I'm not holding my breath.)

Thanks to Thomas Swartz, Esq. for the tip.

Schepp, Part X_X

The Appellate Term, Second Department released its long awaited decisions today in Boston Post Rd. Med. Imaging, P.C. a/a/o Adrian Black v. Progressive Ins. Co., 2007 NYSlipOp 51173(U) (App. Term, 2d Dep't, 2007) and Boston Post Rd. Med. Imaging, P.C. a/a/o Ira Bright v. Progressive Ins. Co., 2007 NYSlipOp 51174(U) (App. Term, 2d Dep't, 2007). Judge Gianelli of District Court, Nassau County, Hempstead Part had granted Progressive, represented by McDonnell & Adels, summary judgment as to their contention that the provider was not a properly licensed entity under the meaning of State Farm v. Mallela, 4 NY3d 313 (2005), and hence not entitled to no-fault benefits.

Justices Rudolph, McCabe, and Tanenbaum don't see it that way. In their estimation, the evidence proffered by Progressive was insufficient to satisfy Mallela. Of course, they give no guidance as to why the evidence was insufficient or what evidence would actually be sufficient.

Very interestingly, the App. Term does implicitly hold that, if proven, the fact that a provider sold its accounts receivable would constitute a defense to no-fault payment. Compare, Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 13 Misc 3d 549 (Civ. Ct., Kings Cty., 2006; Battaglia, J.). Somehow, though, an executed contract selling said accounts receivable (along with an admission of such contract by provider's counsel, but with a differing interpretation) does not prove same. The App. Term's evidentiary rationale is too weak to suffice as a explanation for their decision; we still live under the rule that allegations made in a motion are deemed admitted unless rebutted. Kuehne & Nagel v. Baiden, 36 NY2d 539 (1975); Schneider Fuel Oil, Inc. v. DeGennaro, 238 A.D.2d 495 (2d Dep't, 1997). It has also been true since at least 1899 that "[i]n a civil action[,] the admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made." Reed v. McCord, 160 N.Y. 330, 341 (1899). Perhaps the Appellate Term is waiting for an opportunity to physically observe the execution of said contract.

Either way, despite that one glimmer of hope, at this point the rulings do not bode well for the carriers in the ongoing litigation with Dr. Schepp in Supreme Court, Nassau County or the numerous suits involving Andrew Carothers, M.D., P.C. (which was the successor entity to Dr. Schepp's Boston Post Road Medical Imaging, P.C., Preferred Medical Imaging, P.C., and Deajess Medical Imaging, P.C.). Presumably the carriers are hoping that the judges overseeing those matters will not be as gun-shy as the App. Term was in the decisions released today.

A Lifelong Swan Song

For what its worth, the BG&S website has some articles I've authored, each of which should have been published by now in "The Suffolk Lawyer," which is put out by The Suffolk County Bar Association:

• No-Fault MRI Providers' Suits Stayed Pending Declaratory Judgment Action
• Should Courts Referee No-Fault Referrals? Part 1
• Should Courts Referee No-Fault Referrals? Part 2

All of the articles should be of interest to readers of this blog. Enjoy.

A Short Notice

Please be advised that I am no longer associated with the office of Bruno, Gerbino & Soriano, LLP. I can still be contacted at djtoell @ gmail.com. A resume is available upon request for any interested persons. For the immediate future, I will be in Civil Court, Kings County for per diem appearances.

Let's Get Ready To Humble

The App. Div., 2d Dep't has some very spiffy PDF files available for the three decisions discussed yesterday, in case you happen to like attaching such spiffy-looking documents to your motion papers (or if you're Skip Short, Esq. and deservedly want to frame them): A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 2007 NY Slip Op 03636 (App. Div., 2d Dep't, 2007); A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 2007 NY Slip Op 03635 (App. Div., 2d Dep't, 2007); and New York Univ. Hosp. Rusk Inst. v Government Employees Ins. Co., 2007 NY Slip Op 03671 (App. Div., 2d Dep't, 2007).

I also can't wait to see who throws the next punch in the battle royale occurring in the comments section of my previous post. Can anyone top a slapdown from David M. Barshay, Esq.? I'm thinking it will take another named partner. Then again, the looming spectre of Skip Short, and the results he got in the aforementioned cases, may provide the ultimate trump card...

Hell: Experiencing Intermittent Flurries

Three highly important decisions were put out today by the Appellate Division, Second Department: A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 2007 NY Slip Op 03636 (App. Div., 2d Dep't, 2007); A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 2007 NY Slip Op 03635 (App. Div., 2d Dep't, 2007); and New York Univ. Hosp. Rusk Inst. v Government Employees Ins. Co., 2007 NY Slip Op 03671 (App. Div., 2d Dep't, 2007). These decisions reverse (both specifically and in practical terms) a host of Appellate Term, Second Department cases whereby it was held that a no-fault denial of claim form (NF-10) would be legally insufficient if it merely stated that said denial was based upon the results of a peer review or IME. That is, if a denial were based upon the results of a peer review or IME, the Appellate Term repeatedly held that a carrier had to issue a denial that either attached the peer/IME report or otherwise included the medical rationale of said report.

The Appellate Division's decision from today in A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. sets out the thrust of their reversal of the Appellate Term:

"To the extent the Appellate Term's order may be understood to require an insurer denying a claim for first-party no-fault benefits on the ground of lack of medical justification to include a medical rationale in its denial of claim form, we agree with the defendant that the court erred. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8[b][4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4[c][11]), it would have so provided."

This is a seismic change with a level of force far beyond the Richter Scale in the realm of no-fault medical necessity litigation and arbitrations. It also solidifies a trend by the Appellate Division to pull back the reins on some of the more "creative" Appellate Term decisions.

I expect to see a legion of defense attorneys waving these decisions around in court tomorrow...