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Healthy Way Acupuncture, P.C. v USAA Gen. Indem. Co., 2016 NY Slip Op 51342(U)(App. Term 1st Dept. 2016) “While defendant submitted evidence showing that plaintiff’s assignor misrepresented his military status in the underlying insurance policy application, defendant is precluded from asserting that defense as a result of its untimely denial of the claim (see Westchester Med. […]
American Tr. Ins. Co. v Smiley, 2021 NY Slip Op 05807 (1st Dept. 2021) (2) “Before Supreme Court, defendants did not contest the affiant’s assertion that the September 7, 2017 notice was mailed the same day, three days before Ortiz signed the general release in question (see CPLR 2103[b][2] [service completed when mailed])” (1) “The notice […]
Quality Health Supply Corp. v Progressive Ins. Co., 2021 NY Slip Op 51028(U)(App. Term 2d Dept. 2021) “Upon a review of the record, we find that the testimony of defendant’s senior litigation representative, as well as the certified FOIL documents entered into evidence at trial, were insufficient to establish that plaintiff did not have a […]
Impulse Imaging, P.C. v State Farm Fire & Cas. Co.. 2021 NY Slip Op 51031(U)( “In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on two grounds: (1) that plaintiff’s assignor had failed to appear for examinations under oath […]
PRECISION DIAGNOSTIC, INC., v. PROGRESSIVE AMERICAN INSURANCE CO., No. 4D21-48 (Fla 4th DCA 2021) “We find that the trial court erred in its interpretation of sections 627.736 and 55.03, Florida Statutes (2020), for purposes of calculating interest, but we agree with the trial court that the amount in controversy—$4.17—was de minimis. We affirm” I will […]
CENTRAL FLORIDA MEDICAL AND CHIROPRACTIC CENTER A/A/O RONALD SEALEY vs PROGRESSIVE AMERICAN INSURANCE COMPANY, Case No. 5D21-29 (Fla 5th DCA 2021) “Unlike other rules of civil procedure, Rule 1.442 clearly specifies the cases to which it applies. Despite the general statement of Rule 1.010, Rule 1.442 very clearly and unambiguously states that it “applies to […]
Most sane practitioners stipulate to medical records and then try the case on its merits. But NY civil practice is the true game of ambush warfare. And this is partly due to 3101(d) disallowing expert witness discovery and the necessity of HIPPA AZ’ for anything. Expert witness discovery on both sides due to actual testimony […]
CEDA HEALTH OF HIALEAH, LLC, etc., vs STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY , 3D21-11 Similar to the 2012 NY regulatory changes, the Florida law prohibits billings for services not rendered. See FSA 627.736(5)(b)1.c.. The statute, when triggered, applies to all billings. The NY regulation only seems to apply to services that were billed but […]
PROGRESSIVE SELECT INSURANCE COMPANY vs HEAD TO TOE POSTURE REHAB, LLC a/a/o ALIX LOUIS , No. 4D21-647 (Fla. 4th DCA 2021) Leave it to Progressive. Nobody else in Florida PIP reduces chiropractor bills based upon the concept of MPPR. You know why? It is simple. Medicare does not pay for chiropractor services. Therefore, how do […]
Matter of Miller v Annucci, 2021 NY Slip Op 04954 (2021) (1) “CPLR 5515 (1) provides that an appeal is taken when, in addition to being duly served, the notice of appeal is “fil[ed] . . . in the office where the judgment or order of the court of original instance is entered.” The CPLR […]
HANDS ON CHIROPRACTIC PL A/A/O JUSTIN WICK vs GEICO GENERAL INSURANCE COMPANY, Case No. 5D20-2705 (Fla 5th DCA 2021) GEICO, regardless of where they do business, always has their own view of the law. Here, the provider submitted a bill less than the fee schedule. GEICO decided to pay it at 80% of the billed […]
A.C. Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2021 NY Slip Op 50841(U)(App. Term 2d Dept. 2021) ” Plaintiff claimed, in the papers submitted in support of its amended cross motion, that, in March]2017, it had submitted two bills dated March 29, 2017 to defendant, for services rendered to Mr. Bailey on November […]
GEICO GENERAL INSURANCE COMPANY vs HALLANDALE BEACH ORTHOPEDICS, INC. A/A/O FRITZNIE JARBATH, 4D21-206 (Fla 4th DCA 2021) If a fee schedule says that you are only liable for 80% of 200% of a fee and the billed amount is less than 80% of 200% of the fee, what can you do? The Florida court said […]
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, vs M & E DIAGNOSTIC SERVICES, INC., etc., 3D20-1193 (Fla 3d DCA 2021) When trying a boardable medical case, a really thorny issue becomes what is the value of the services billed. NY generally does not get into that issue because no-fault has a fee schedule, thereby obviating the […]
Cautious Care Med., P.C. v 21st Century Ins. Co., 2021 NY Slip Op 50785(U)(App. Term 2d Dept. 2021)   “In support of its motion, defendant submitted an affidavit by the person alleged to have received service of process, who stated that she always follows defendant’s practices and [*2]procedures for receipt of process. These practices and procedures […]
Velasqeuz v. Hernandez, Index #: 31482/2019E (Sup. Bx. Co. 2001) My case. CPLR 301 – hahahahhahahah. Gotcha. Bronx jury or Connecticut jury?
PALISADES INSURANCE COMPANY VS. HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY, A-2830-19 One of the interesting aspects or evolution of New Jersey PIP law is that is has devolved from a comprehensive all encompassing benefit to one that is either limited or non-existent. The historians will remember that until the 1990 Fair Automobile Insurance […]
I specifically remember that Mr. Barhshay and myself battled this issue in a different time in all of our lives. Primary Psychiatric Health, P.C. v. State Farm Mut. Auto Ins. Co., 15 Misc. 3d 1111(A)(Civ. Ct. Kings Co. 2007). In Primary, the carrier conducted IMES wherein the experts found that the injuries were not related […]
Doctor Goldshteyn Chiropractic, P.C. v Empire Fire & Mar. Ins. Co.. 2021 NY Slip Op 50722(U)(App. Term 2d Dept. 2021) This case is remarkable for one thing and one thing only. Why wouldn’t you put the famous line in the stupulation: if payment is not made in ___ days. judgment will be entered in the […]
I was having a conversation with a nameless friend and we were discussing the issue of handling lost wage no-fault cases as an Applicant. It had me thinking as i have had quite a bit of experience and I wish to share some of my 1. thoughts. The NF-6 worker. There are only two type […]
Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 2021 NY Slip Op 04484 (2d Dept, 2021) I will summarize this. Case started as a pre 2002 reg change no-fault matter in Civil Court. Provider obtained summary judgment, which during the Mary Immaculate and contemporary medical days was not too difficult. The law as it […]
MIRACLE HEALTH SERVICES, INC., A/A/O KIRENIA TAMAYO, vs PROGRESSIVE SELECT INSURANCE COMPANY, No. 3D21-14 I really find the analysis here telling and quite biting. (1) “Miracle Health sent Progressive four sets of bills for Tamayo’s treatment, which Progressive received on May 21, 2014, June 2, 2014, June 23, 2014 and July 18, 2014, respectively. On […]
Colin Clarke, M.D., P.C. v MVAIC, 2021 NY Slip Op 50729(U)(App. Term 2d Dept 2021) (1) “The complaint alleges that the claims arose out of six separate accidents which occurred on six different dates.” (2) “A review of the denial of claim forms, explanations of review and correspondence pertaining to the claims at issue reflects […]
Matter of Philadelphia Ins. Indem. Co. v Kendall, 2021 NY Slip Op 04284 (1st Dept, 2021), It is always an interesting issue that is presented: Will an email satisfy the writing requirement of CPLR 2104? The answer used to be it depends: “Supreme Court relied on the Second Department’s decision in Forcelli v Gelco Corp. (109 AD3d […]
While the insurance carriers do not generally have bad faith in New York and the statutory attorneys fees are anemic, the rule on preclusion in the no-fault sphere acts often times acts as the great equalizer. That said, the preclusion remedy over time has been chipped away, but the “nuts and bolts” no-fault defenses still […]
Nieva-Silvera v Katz, 2021 NY Slip Op 04144 (2d Dept. 2021) Cervical fusion, arthroscopic surgery, verdict reduced to 2 million. Plaintiff appealed and received another $570,000 from the Second Department. Would you have appealed for the extra $570,000? I can tell you if I walked home with $2 million from a runaway jury after reductions […]
ASSOCIATES IN FAMILY PRACTICE OF BROWARD, LLC a/a/o YVETTE BROWN v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, 4D21-173 (Fla. 4th DA 2021) (1) “Provider billed Allstate using four different Current Procedural Terminology (“CPT”) codes as published in the American Medical Association’s CPT Manual, two of which are relevant to this case: CPT code 99205-25 (“the […]
Geico Indmenity Co. v. Muransky Chiropractic, P.A., No, 4D21-457 (Fla. 4th DCA 2021) When a no-fault statute gives the carrier an option to write in terms, we end up with messes. The Gecko did this in the within case. Under Florida’s statute, payment is limited to 80% of 200% of Medicare Part B of the […]
UNITED AUTOMOBILE INSURANCE COMPANY, vs CHIROPRACTIC CLINICS OF SOUTH FLORIDA, PL, A/A/O MICHAEL AKINS, No. 3D21-111 Florida’s version of American Transit Ins. Co., United Auto Ins. Co, disclaimed benefits on the basis of a purported material misrepresentation that was made on the insurance application. United later realized there was no material misrepresentation and they were […]
One of the things that I find readily amazing is that notwithstanding a veto proof progressive majority, bad faith reform cannot pass the Legislature. The current law, which comes from the 1994 Pavia standard, on third-party claims requires an almost criminal indifference before bad faith is actionable. In my thinking, the only sure fire way […]
Lenox Hill Radiology & MIA, P.C. v Hereford Ins. Co., 2021 NY Slip Op 21157 (Civ. Ct. NY Co. 2021) “Although plaintiff submitted decisions from no-fault arbitrations where the arbitrators ruled that the provider’s responses to demand payment of reproduction costs complied with the insurer’s verification requests (see plaintiff’s supplemental affirmation in opposition, arbitration awards), this […]
This is not too off topic. The Court of Appeals is run by the prior DA of Westchester. Nassau County DA Singas has now been elevated to the Court of Appeals. Finally, Judge Garcis was a former prosecutor. Judge Cannataro was just elevated to the Court of Appeals but he reminded me of Judge Jeremy […]
Sheepshead Bay Med. Supply, Inc. v Erie Ins. Co. of N.Y., 2021 NY Slip Op 50491(U)(App. Term 2d Dept. 2021) “Contrary to plaintiff’s assertion, defendant established that it had mailed the NF-10 denial of claim forms at issue in duplicate. The affirmation of plaintiff’s counsel in opposition to defendant’s motion for summary judgment was insufficient […]
Brash v Richards, 2021 NY Slip Op 03436 (2d Dept. 2021) Add on the period from 3/20/20 to 11/3/20 On March 20, 2020 Governor Cuomo issued Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), which provided: “I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April […]
U.S. Bank N.A. v Jalas, 2021 NY Slip Op 03506 (3d Dept. 2021 I have always cringed when a case gets dismissed based upon 3215(c) because, in my mind, that was a malpractice trap. As a defendant, I always smiled because it was an I got you moment. As a Plaintiff, well no comment. But […]
State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 2021 NY Slip Op 03536 (1st Dept. 2021) “The claim representative’s affidavit set forth the factual basis for plaintiff’s belief that the accident was not a covered event because the loss was intentionally caused and the injuries purportedly sustained by the claimants in […]
Belfand v Petosa, 2021 NY Slip Op 03522 (1st Dept. 2021) I follow certain US Supreme Court cases, because I always like to see how far the Court veers from constitutional precedent that I learned quite awhile ago in law school. This Eleventh Amendment jurisprudence does not seem to be correct. If NJ Transit comes […]
JCC Med., P.C. v Lancer Ins. Co., 2021 NY Slip Op 50485(U)(App. Term 2d Dept. 2021) “In addition, the testimony of defendant’s no-fault claims examiner was sufficient to establish that the denial of claim forms were timely mailed (see St. Vincent’s Hosp. of Richmond [*2]v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff notwithstanding that […]
I was actually excited to see some of the new Judges that are headed to the Appellate Divisions. According to the Law Journal, Lasalle (new presiding judge) and Higgitt are being promoted amongst others. Higgitt is a work-horse and very smart. He was one of the smarter law secretaries in the Bronx and I was […]
Excel Prods., Inc. v Ameriprise Auto & Home, 2021 NY Slip Op 50435(U)(App. Term 2d Dept. 2021) “As a result, defendant established its prima facie entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d at 597). Defendant did not need to toll its time to pay or deny the […]
Excel Prods., Inc. v Farmington Cas. Co., 2021 NY Slip Op 50441(U)(App. Term 2d Dept. 2021) I was just discussing Dowd. Then you have this: “Contrary to defendant’s contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to appear for EUOs, since the initial EUO […]
Unitrin Advantage Ins. Co. v Dowd, 2021 NY Slip Op 03012 (1st Dept. 2021) “The failure to appear for an EUO that was requested in a timely fashion by the insurer is a breach of a condition precedent to coverage and voids the policy ab initio (see Hertz Vehicles, LLC v Alluri, 171 AD3d 432 [1st Dept […]
Parisien v Travelers Ins. Co., 2021 NY Slip Op 50396(U)(Civ. Ct. Kings Co. 2021) I did mean to write on this one sooner as it was a very well written lower court opinion. It is probably a primer or a history lesson of the EUO no sow defense over the last ten (10) years. It […]
Something very interesting happened last week in the Sunshine State. A comprehensive bill i) Mandating BI coverage for the first time in state history; ii) Legislatively approving Florida’s crazy bad-faith case law; and iii) Eliminating PIP passed both houses. Where do I stand? I do both Plaintiff and Defense PIP in FLA, so I am […]
SOUTH FLORIDA PAIN & REHABILITATION OF WEST DADE v. INFINITY AUTO INSURANCE COMPANY (No. 4D21-438)(Fla 4th DCA 2021) In Florida, the rule is that the provider has to send a demand letter before filing a lawsuit. The carrier then has 30-days to pay what is owed with interest, postage and a 10% penalty up to […]