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WeSueThem Blog
I was asked again about the defamation that appears sporadically against me on the internet. I took down my last post because I thought by both OREN ZIV and his attorney being sued for defaming me, it would stop. Well, I was being rational and that was a mistake. I would note that I rid […]
Unique Physical Therapy, PT, P.C. v Global Liberty Ins. Co. of N.Y., 2021 NY Slip Op 50323(U)(App. Term 2d Dept. 2021) “To the extent that defendant cites Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co. (65 Misc 3d 140[A], 2019 NY Slip Op 51704[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) to […]
Lumbermens Mut. Cas. Co. v A B Med. Servs., PLLC, 2020 NY Slip Op 07280 (1st Dept. 2020) “As an initial issue, 11 NYCRR 65-3.11 (a) limits no-fault medical billing to employees of the provider that submits claims for no-fault benefits. It is submitted that Supreme Court properly granted judgment in favor of plaintiffs, because […]
American Tr. Ins. Co. v Health Plus Surgery Ctr., LLC, 2021 NY Slip Op 01499 (1st Dept. 2021) “Plaintiff is not entitled to de novo adjudication of the master arbitrator’s award in favor of defendant CitiMed Services, PA, because the award is less than $5,000 (Insurance Law § 5106[c]). The medical services provided to plaintiff’s […]
Pavlova v Nationwide Ins., 2021 NY Slip Op 50213(U)(App. Term 2d Dept. 2021) “To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a plaintiff’s assignor failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from […]
JPF Med. Servs., P.C. v Nationwide Ins., 2020 NY Slip Op 51122(U)(App. Term 2d Dept. 2020) ” Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant […]
Longevity Med. Supply, Inc. v Nationwide Ins., 2020 NY Slip Op 51133(U)(App. Term 2d Dept. 2020) “Plaintiff failed to raise a triable issue of fact in opposition. Contrary to the Civil Court’s determination, “appearance at an [EUO] is required whether the insurance company demands the [EUO] before the claim form is submitted or after the […]
Uy v Hussein, 2020 NY Slip Op 05080 (2d Dept. 2020) “In any event, even considering Hussein’s affidavit, as well as an affidavit submitted in reply by Uber representative Chad Dobbs, which contained essentially the same averments as Hussein’s affidavit, Uber failed to meet its burden. An action may be considered to be within the […]
Alignment Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 2020 NY Slip Op 50994(U)(App. Term 2d Dept. 2020) “A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented. To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, […]
Gargano v Langman, 2020 NY Slip Op 04923 (2d Dept. 2020) “An order denying a motion to compel a witness to answer questions propounded at an examination before trial is akin to a ruling made in the course of the examination itself and is not appealable as of right, even where it was made upon […]
Zapata v Yugo J & V, LLC, 2020 NY Slip Op 02687 (3d Dept. 2020) “Turning to the issue of damages, we reject Yugo’s contention that Supreme Court erred in not requiring expert testimony to prove plaintiffs’ damages. Generally speaking, “expert testimony is appropriate when it serves to clarify an issue that is beyond the […]
Matter of Vega (Postmates Inc.–Commissioner of Labor), 2020 NY Slip Op 02094 (2020) Your Uber driver is an employee. Watershed moment I think. “Here, there is substantial evidence in the record to support the Board’s determination that Postmates exercised control over its couriers sufficient to render them employees rather than independent contractors operating their own […]
Ross v Geico Indem. Co., 2019 NY Slip Op 04242 (3d Dept. 2019) ” In October 2014, defendant denied plaintiff any additional no-fault insurance lost wage benefits after receiving notification from Walmart that plaintiff was terminated from employment due to her lack of compliance with Walmart’s leave of absence guidelines. Plaintiff thereafter commenced this action […]
Moshe v Country-Wide Ins. Co., 2019 NY Slip Op 29138 (Dis. Ct. Nassau Co. 2019) Introductory thoughts I love this case. It makes little sense for many reasons. But what is perplexing is how much of the income of Moshe is active? He missed a day of work – what business opportunities were missed? What […]
Noel v Nationwide Ins. Co. of Am., 2019 NY Slip Op 02348 (2d Dept. 2019) (1) ” The Supreme Court denied those branches of the defendant’s motion which were pursuant to CPLR 3211(a)(1) and (7), and in effect denied those branches of the defendant’s motion which were pursuant to CPLR 3211(a)(3) and CPLR 3212, on […]
Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co., 2018 NY Slip Op 51785(U)(App. Term 2d Dept. 2018) “The decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see King’s Med. Supply, Inc. v […]
Active Care Med. Supply Corp. v Hartford Ins. Co., 2018 NY Slip Op 51591(U)(App. Term 2d Dept. 2018) “Contrary to plaintiff’s contention, a lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d […]
Moshe v Country-Wide Ins. Co.. 2018 NY Slip Op 28220 (Dis. Ct. Nassau Co. 2018) (1) “Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of monies claimed due as loss of earning for Moshe’s appearance at a November 10, 2015 examination under oath (EUO or deposition) taken in […]
Maxford, Inc. v Erie Ins. Co. of N.Y., 2018 NY Slip Op 51057(U)(App. Term 2d Dept. 2018) “Defendant cross-moved on the ground that plaintiff’s assignor had fraudulently procured the insurance policy in question by making a material misrepresentation on her policy application as to her place of residence and the principal location for the garaging of […]
Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co., 2018 NY Slip Op 50741(U)(App. Term 2d Dept. 2018). “In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint upon the ground that plaintiff’s assignor had procured […]
Contact Chiropractic, P.C. v New York City Tr. Auth., 2018 NY Slip Op 03093 (2018) 4-3 holding. For self insured entities, the statute of limitations is 3 years. Judge Stein was blunt in saying: “I concur in the majority’s analysis and conclusion. However, I write separately to point out that, on this appeal, we do not […]
Martinez v Metropolitan Transp. Auth., 2018 NY Slip Op 02028 (1st Dept. 2008) “Plaintiff failed to establish her past lost earnings with reasonable certainty since her testimony was unsubstantiated by tax returns, W-2 forms, or other documentation (Orellano v 29 E. 37th St. Realty Corp., 4 AD3d 247 [1st Dept 2004], lv denied 4 NY3d 702 [2004]; cf. Kane v […]
Chiropractic Testing Servs. of N.Y., P.C. v American Tr. Ins. Co., 2018 NY Slip Op 28052 (Civ. Ct. Richmond Co. 2018) “This case is distinguishable from Global Liberty, however, because Assignor did not own his vehicle. Here, American United Transportation (hereinafter, “the cab company”) owned the vehicle and was named as the insured on the automobile insurance […]
Gomez v Cabatic, 2018 NY Slip Op 00278 (2d Dept. 2018) “On consideration of the above authority, we now hold that where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover punitive damages for that medical professional’s act of altering or destroying medical records in an effort […]
Devonshire Surgical Facility, L.L.C. v Hereford Ins. Co., 2010 NY Slip Op 52297(U)(2d Dept. 2010) “Therefore, resolution of the factual question presented on this record “is best suited for determination by the [Workers’ Compensation] Board, given its expertise in the area” (Arvatz, 171 AD2d at 269), and the parties’ respective summary judgment motions should have […]
Matter of Progressive Advanced Ins. Co. (Widdecombe), 2018 NY Slip Op 00061 (3d Dept. 2018) (1) “Initially, it is undisputed, as Supreme Court correctly determined, that Germain is an uninsured motorist as none of his automobile policies, including a prior policy with Hartford, was in effect on the date of this incident. Thus, any exclusion in […]
Freligh v Government Employees Ins. Co., 2017 NY Slip Op 08714 (2017) “Triable issues of fact exist as to plaintiff’s claim for lost wages. ” This was the case where the Appellate Division, Third Department went to great pains to show that the Plaintiff’s lost wage claims were the textbook definition of speculative. The dissent argued […]
Easy Care Acupuncture, PC v Hartford Ins. Co., 2017 NY Slip Op 51470(U)(App. Term 1st Dept. 2017) This first party, no-fault action is not susceptible to summary disposition. The evidentiary proof submitted by defendant-insurer in support of its motion for summary judgment, while sufficient to demonstrate that defendant had a “founded belief” that the assignor’s injuries […]
Contact Chiropractic, P.C., as Assignee of Girtha Butler v N. Y. City Tr. Auth., 2017 NY Slip Op 88572 (2017) Apparently, an entity that has NO stake in this battle, American Transit Ins. Co., felt the need to file an Amicus on this issue. Should make for some light an highly relevant reading. Assuming the Court […]
AEE Med. Diagnostic, P.C. v Travelers Prop. Cas. Co. of Am., 2017 NY Slip Op 51209(U)(App. Term 1st Dept. 2017) “Defendant’s submissions in support of its motion for summary judgment dismissing this first-party, no-fault action, including the statement of plaintiff’s assignor, raised triable issues as to whether the assignor had been acting in the course of […]
Compas Med., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 51192(U)(App. Term 2d Dept. 2017) “Contrary to plaintiff’s argument on appeal, defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, and that, therefore, […]
Quality Med. Care, PC v Progressive Cas. Ins. Co., 2017 NY Slip Op 50999(U)(Civ. Ct. Bronx Co. 2017) I read this and I think the Court missed the issue, yet arrived at the result it should have. First issue: a material misrepresentation defense (Ins Law 3105) does not require an intentional misrepresentation. That said, second issue: […]
Freligh v Government Empls. Ins. Co., 2017 NY Slip Op 05911 (3d Dept. 2017) Admittedly, I like the issue of lost wages. I am convinced few practitioners understand all the nuances involved – I will not say more. It is clearly an undeveloped area of no-fault law and seemingly all over the place. Perhaps that is […]
Cadlerock Joint Venture, L.P. v Trombley, 2017 NY Slip Op 03927 (2d Dept. 2017) “Contrary to the Supreme Court’s determination, the plaintiff failed to demonstrate the admissibility of the records relied upon by its account officer under the business records exception to the hearsay rule (see CPLR 4518[a]), and thus, failed to establish a default in […]
High Definition MRI, P.C. v Mapfre Ins. Co. of N.Y., 2017 NY Slip Op 01800 (1st Dept. 2017) “The court properly severed the breach of contract cause of action, since the 198 unrelated no-fault claims asserted therein raise no common issues of fact or law (see CPLR 603; Radiology Resource Network, P.C., v Fireman’s Fund Ins. […]
Flatbush Chiropractic, P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50105(U)(App. Term 2d Dept. 2017) “A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]) and must “contain reasonable justification for the failure to present such […]
JCC Med., P.C. v Infinity Group, 2016 NY Slip Op 26439 (App. Term 2d Dept. 2016) (1) It is uncontroverted that defendant had issued a Georgia automobile insurance policy to the brother of plaintiff’s assignor, “effective from August 28, 2010 through August 28, 2011,” who had made various representations to defendant in his insurance application, including […]
Joseph v Interboro Ins. Co., 2016 NY Slip Op 08050 (2d Dept. 2016) (1) “Based on the information provided by McKayle, Karis completed an application for insurance, which said that the premises would be occupied by the plaintiffs as their primary residence. The plaintiffs signed the application, and thereafter, on the date of closing, a homeowners’ […]
Renelique v National Liab. & Fire Ins. Co., 2016 NY Slip Op 51615(U)(App. Term 2d Dept. 2016) It appears that Oleg Rybak has gotten his point across that the “fraudulent procurement” defense is really a material misrepresentation defense in disguise. This defense has to fit within the parameters of Ins Law 3105 and be supported with […]
Infinity Ins. Co. v Nazaire, 2016 NY Slip Op 31454(U)(Sup. Ct. Kings Co. 2016) This is a PA rescission case based upon a garaging issue. The Court caught on to something interesting. First, the EUO of the Defendant was not annexed to the moving papers. Second, the Court found the investigator affidavit to be hearsay. Third, […]
Compas Med., P.C. v Praetorian Ins. Co., 2016 NY Slip Op 51000(U)(App. Term 2d Dept. 2016) “Moreover, defendant failed to establish as a matter of law that the misrepresentation by plaintiff’s assignor as to his place of residence was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2011]). For the foregoing reasons, the branches […]
ELRAC LLC v Duque, 2016 NY Slip Op 26169 (App. Term 1st Dept. 2016) This is not a no-fault issue but something that has always worried me in my own life. Assume like many people you rent a car. Furthermore, assume you let someone drive it who is not on the rental contract. That someone else […]
Contact Chiropractic, P.C., as assignee of Butler v New York City Transit Authority, 2016 NY Slip Op 73043(U)(2d Dept. 2016) SOL on self-insured’s going up to the Court of Appeals. “ORDERED that the motion is granted, and the following question is certified to the Court of Appeals: Was the decision and order of this Court dated […]
Beal-Medea Prods., Inc. v Geico Gen. Ins. Co., 2016 NY Slip Op 50594(U)(App. Term 2d Dept. 2016) “Plaintiff’s motion should have been granted. Defendant’s CPLR 4401 motion for judgment as a matter of law was made before the close of plaintiff’s case, and was therefore premature (see Kamanou v Bert, 94 AD3d 704 [2012]). Furthermore, the […]
Ultimate Health Prods., Inc. v Hereford Ins. Co., 2016 NY Slip Op 50367(U)(App. Term 2d Dept. 2016) “Contrary to plaintiff’s contention, a lack of coverage defense may be raised without regard to any issue as to the propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, […]