WeSueThem in federal, state, and local courts, protecting YOU every step of the way.
WeSueThem Blog
Nyack Hosp. v Allstate Ins. Co., 2011 NY Slip Op 04644 (2d Dept. 2011) This Medicaid crisis has spurred judicial activism from the Appellate Division, Second Department. Now an intentional act, both a coverage issue and a policy exclusion has been deemed to be the latter, to the exclusion of the former. I swear people […]
Corona Hgts. Med., P.C. v Liberty Mut. Ins. Co., 2011 NY Slip Op 21130 (App. Term 2d Dept. 2011) “Where, as here, a defendant has not established the proper mailing of the denial of claim form, the claim is considered not to have been denied and payment of benefits will therefore be considered to be […]
Flatlands Acupuncture, P.C. v Fireman’s Fund Ins. Co., 2011 NY Slip Op 21133 (App. Term 2d Dept. 2011) This case is so fraught with procedural errors from the parties that you have to wonder whether anyone thinks before they write Anyway, here is the holding: “There are, therefore, two methods to compute the accrual date […]
State Farm Mut. Auto. Ins. Co. v Langan, 2011 NY Slip Op 02437 (2011) It is Langan again. That bad dream that does not go away. Well this time, the Court of Appeals held that for both lines of first-party automobile coverage, PIP and UM/SUM/UIM, an intentional act should be looked at through the viewpoint […]
Omega Med. Diagnostic v MVAIC, 2011 NY Slip Op 50275(U)(App. Term 1st Dept. 2011) They just really do not like MVAIC at 60 Centre Street. Hard to imagine why.
M.N. Dental Diagnostics, P.C. v New York City Tr. Auth., 2011 NY Slip Op 01525 (1st Dept. 2011) It is well settled that “the No-Fault Law does not codify common-law principles; it creates new and independent statutory rights and obligations in order to provide a more efficient means for adjusting financial responsibilities arising out of […]
Infinity Health Prods., Ltd. v American Tr. Ins. Co., 2011 NY Slip Op 50195(U)(App. Term 2d Dept. 2011) “Defendant’s proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., […]
Lincoln Gen. Ins. Co. v Alev Med. Supply, Inc., 2011 NY Slip Op 21012 )(App. Term 2d Dept. 2011) In a case with major implications, the Appellate Term for the 9th and 10th Judicial Districts reached a key compromise behind the dicta found at the Appellate Term’s holding in Fair Price v. Travelers (a precluded […]
Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 2011 NY Slip Op 00217 (2d Dept. 2011) “Moreover, although the defendants contend that they submitted evidence showing that the plaintiff’s assignor misrepresented his state of residence in connection with the issuance of the subject insurance policy, the defendants are precluded from asserting that defense, as […]
Kruger v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 09456 (3d Dept. 2010) This is why I always plead every affirmative defense in every answer I generate. “After joinder of issue and discovery, defendant moved for dismissal of the complaint, asserting for the first time that plaintiff had assigned her right to […]
St. Vincent’s Hosp. & Med. Ctr. v American Tr. Ins. Co., 2010 NY Slip Op 52063(U)(App. Term 2d Dept. 2010) “As defendant was already in possession, prior to its verification requests, of the subject NF-5 forms, which each bore notations that the assignor’s signature was “on file,” defendant’s verification requests, in effect, sought a copy […]
B.Y., M.D., P.C. v American Tr. Ins. Co., 2010 NY Slip Op 51902(U)(App. Term 2d Dept. 2010) “[d]efendant’s cross motion [is] remitted to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. In the event […]
Some have said no-pain, no gain. But, how much pain does one have to endure before it becomes apparent that “something is rotten in the State of Denmark.” S & L Med. P.C. v MVAIC, 2010 NY Slip Op 51885(U)(App. Term 1st Dept. 2010) “While MVAIC was not precluded by its conceded untimely denial of […]
New Millenium Med. Supply v Clarendon Natl. Ins. Co., 2010 NY Slip Op 51820(U)(2d Dept. 2010) “no-fault [action]…pursuant to a policy of insurance was not interposed within the applicable six-year statute of limitations since the cause of action accrued on the date the claim became overdue — here, 30 days after defendant’s receipt of the […]
Motor Veh. Acc. Indem. Corp. v NYC East-West Acupuncture, P.C., 2010 NY Slip Op 07111 (1st Dept. 2010) Sometimes, you win the battle but lose the war. The best instance of that paradox in no-fault practice involved the Appellate Division’s holding in Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 […]
Lenox Hill Radiology v Government Empls. Ins. Co., 2010 NY Slip Op 51638(U)(App. Term 1st Dept. 2010) “Plaintiff’s listing of Higginbotham as the insured party on its claim form — an apparent clerical error — did not obligate defendant to conduct an exhaustive search to exclude the possibility that Higgingbotham was defendant’s insured, a status […]
Total Family Chiropractic v Mercury Cas. Co., 2010 NY Slip Op 51470(U)(App. Term 2d Dept. 2010) This was another one that did not necessarily go my way. By way of explanation, this was a complicated case, where the defense was whether plaintiff assignors made or conspired to make material misrepresentations in the procurement of the […]
Quality Psychological Servs., P.C. v GEICO Ins. Co., 2010 NY Slip Op 51423(U)(Civ Kings. 2010) Here are the five statements from this case that are important. (1) “In an action to recover assigned first party no-fault benefits, defendant seeks leave to amend its answers, strike the notices of trial, and compel discovery, including a deposition.” […]
Last v Guardian Life Ins. Co. of Am., 2010 NY Slip Op 03416 (2d Dept. 2010) “[t]he plaintiff, whose causes of action were asserted in a untimely filed complaint, as opposed to in an amendment to a timely filed complaint, in an intervenor’s complaint in a timely commenced action (see CPLR 1013), or in an […]
AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 2010 NY Slip Op 50708(U)(App. Term 2d Dept. 2010) “…reversed without costs, the provision denying without prejudice defendant’s motion for summary judgment is stricken and defendant’s motion for summary judgment is remitted to the Civil Court to be held in abeyance pending a prompt application to […]
Once a month, the Fourth Department usually barrages us with about 100 or so decisions. The hard part is sifting through them quickly enough and finding the ones that are worth posting. The next few posts will be from the Appellate Department that specializes in short opinions, the use of the “memorandum” and which always […]
Campbell v Thomas, 2010 NY Slip Op 02082 (2d Dept.2010)(Prudenti, P.J.) For those of you who have been involved with elder abuse in some fashion, this case reads like a screen play of some of the horrors that bestow some of our most vulnerable seniors. But there is a real no-fault link in this one. […]
This is a most interesting case. I will discuss my thoughts in some detail because this case seems to possibly support the inference that a default judgment in a declaratory judgment involving a staged or non-loss may never be viable. I do not think that is the case at all. I also am not sure […]
The issue of what must be demonstrated in order to divest a court of subject matter jurisdiction when there is a workers compensation issue present has been the matter of significant debate over the last few years. The appellate decisions in this area of law have been somewhat inconsistent. Most of these appellate decisions, along […]
Aurora Loan Servs., LLC v Thomas, 2010 NY Slip Op 01606 (2d Dept. 2010) Contrary to the plaintiff’s contention, the defendant Terence Thomas did not waive the defenses of lack of standing and lack of capacity to sue (cf. Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239). Further, the Supreme Court properly granted […]
This “default” case is quite strange. SZ Med., P.C. v Lumbermens Mut. Cas. Co., 2010 NY Slip Op 20044 (App. Term 2d Dept. 2010). The majority and the dissent have a different take on the facts and circumstances of this matter. At its core, this case involves a summary judgment victory on default, where the […]
Hame v Lawson, 2010 NY Slip Op 00811 (2d Dept. 2010) I appealed a similar type of defamation case last year. Horbul v Mercury Ins. Group, 64 Ad3d 282 (2d Dept. 2009). In Horbul, the Appellate Division observed the following: “The plaintiff alleged in the complaint that the defendants committed slander per se when they […]
Since proof of standing is generally not an affirmative part of a no-fault claimant’s prima facie case, this case from the First Department might be of minimal importance to the no-fault bar. For those of us who are called to help friends, loved ones and members of the armed services avoid foreclosures, the “assignment” defense […]
Chester Med. Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 52598(U)(App. Term 2d Dept. 2009) “On November 21, 2006, plaintiff, a provider, commenced the instant action to recover assigned first-party no-fault benefits for a claim which was submitted to defendant on April 28, 2000. Defendant moved to dismiss the complaint […]
Today, the last nail was placed in the coffin for the joining of claims from different assignors, which arise from different accidents and do not implicate a common coverage defense. In an appeal I took up – mainly because I did not think it was fair that certain firms were not playing by the “rules” […]
Countrywide Home Loans, Inc. v Gress, 2009 NY Slip Op 08989 (2d Dept. 2009) “Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of the motion of the defendant Anthony Gress which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(3) on the ground that the plaintiff […]
There have been numerous cases where the Appellate Term, Second Department, has refused to grant an insurance carrier summary judgment based upon proof that a motor vehicle accident was intentional. So, the matter of A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 2009 NY Slip Op 52383(U)(App. Term 2d Dept. 2009), is really of […]
There have been numerous cases where the Appellate Term, Second Department, has refused to grant an insurance carrier summary judgment based upon proof that a motor vehicle accident was intentional. So, the matter of A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 2009 NY Slip Op 52383(U)(App. Term 2d Dept. 2009), is really of […]
While not earth shattering, the matter of Richmond Hospital a/a/o Claudio v. State Farm (Sup. Ct. Nassau Co. Index # 22143/08 [Lally, J. 2009]) that I prevailed on is proof that the courts are heeding the Court of Appeals decision in holding that an Assignment of Benefits form bearing the legend “signature on file” may […]
The Fourth Department in Palisades Collection, LLC v Kedik, 2009 NY Slip Op 08259 (4th Dept. 2009) discussed standing and the business record rule, all in one decision. Interestingly, the failure to get the assignment of benefits into evidence proved fatal to the Plaintiff Assignee’s prima facie case. I think Judge Billings 5 years ago […]
In New York First Acupuncture, P.C. v. State Farm Mut. Auto Ins. Co., 2009 NY Slip Op 52217(u), the Appellate Term in the context of an improper incorporation defense stated again that: “Plaintiff’s contention, that the defense of fraudulent incorporation must be asserted in a timely denial of claim form, is without merit (Multiquest, P.L.L.C. […]
Wells Fargo Bank, N.A. v Marchione, 2009 NY Slip Op 07624 (2d Dept. 2009) There seems to be an air of schizophrenia when the word “standing” finds its way in the Appellate Division reporter. As I reported earlier, outside of the realm of no-fault practice, the “defense” of standing must be preserved through an affirmative […]
In the matter of Sunshine Imaging Association/wny Mri v Government Employees Ins. Co., 2009 NY Slip Op 06984 (4th Dept. 2009), the Appellate Division, Fourth Department finally chimed in as to what constitutes a prima facie case in a no-fault action. The last time the Fourth Department discussed this issue, they held that a plaintiff, […]
Alexander Alperovich, M.D., P.C. v Auto One Ins. Co., 2009 NY Slip Op 51721(U)(App. Term 2d Dept. 2009) They say many times that the devil is in the details. In this case, the defense to the payment of no-fault claims was that there was some type of misrepresentation or “fraud” in the procurement of the […]
One of the most intriguing things about this area of law is that in a matter of 6 months, the same court can make pronouncements that are apparently inconsistent with each other. Some of these inconsistencies are subtle. Some of them are more pronounced. An example of a sublte change is the pronouncement that an […]
AA Acupuncture Serv., P.C. v Safeco Ins. Co. of Am., 2009 NY Slip Op 29311 (App. Term 1st Dept. 2009) This was a really interesting decision. It is so rare that the Appellate Term, First Department writes a lengthy decision about any topic, let alone one involving a no-fault case. The law announced in this […]
I would be remiss if I did not thank Dave Barshay for the citation to this blog in his article. I also must thank David Gottlieb for posting Mr. Barshay’s citation to this article on his blog. While I am not sure it is really critical that you read this blog, despite what Mr. Gottlieb […]
Cornell Med., P.C. v Mercury Cas. Co. 2009 NY Slip Op 29228 (App. Term 2d Dept. 2009) This case is extremely complicated. There are two points of law that came from this case. The first point of law that came from this case, and it is significant, is that a prima facie demonstration of failure […]
Spring World Acupuncture, P.C. v NYC Tr. Auth. 2009 NY Slip Op 29229 (App. Term 2d Dept. 2009) Finally, someone convinced the Appellate Term that no-fault actions created by statute have a six year SOL. The lead case on this one, Elrac v. Suero, clearly held that a first-party action, created by statute but contractual […]
In reading the Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 2009 NY Slip Op 02589 (2d Dept. 2009) case that involved the validity of a denial based upon workers compensation primacy, it appeared (at first blush) that the providers obtained a true victory against the carriers. Whereas compensation is somewhat consistent with managed health […]