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Another IME no -show – but this was mine so it is blogworthy June 28, 2015

S.A. Med., P.C. v Praetorian Ins. Co., 2015 NY Slip Op 50953(U)(App. Term 1st Dept. 2015)
It is one of the perks of maintaining this monster.  I chose the cases that land on here, although I allow almost all comments on here, even if directed towards me.
“The defendant-insurer made a prima f

Court apparently finds CPLR 3211(a)(4) sufficient to dismiss part of DJ June 23, 2015

American Transit Ins. Co. v. Figueroa (Index #: 150603/14)(Sup Ct. NY CO. 2015)
The Supreme Court here appeared to be angered at a declaration judgment action.  Part of the motion that Defendant made was to dismiss based upon CPLR 3211(a)(4).  As we all know, American Transit v. Solorzano addresse

  1. Anonymous says:

    The precedential value of that single sentence in Solorzano is questiOnable, at best, especially as applied to defendants that have appeared and answered in the declaratory action. I see no facial error in the Supreme Court decidIng that, “under the circumstances” (to use the Solorzano court’s words) of a given case, dismissal is appropRiate.

  2. Zeb says:

    I’m newer to no fault, but not new enough to know that billings, who was cited in the transcript, is a tough judge on carriers. maybe solorzano wasn’t argued to the fullest, but you have to wonder if it would have made a difference.

    fortunately, the 1st dept app division and term cases still hold water with most other judges. this case should be appealed; however, with any appeal, you run the risk of creating bad law. looks like its just bad luck for the carrier.

    • jtlawadmin says:

      The point I was making is that if you are going to appear on these cases, argue the law, tell the judge he is wrong and let him know why. We all lose and that is fine. But this firm has a tendency of doing none of the above, and it is irksome because this behavior affects all practitioners.

Preponderance on a Mallela case June 22, 2015

Matter of New Century Acupuncture P.C. v Country Wide Ins. Co., 2015 NY Slip Op 50919(U)(App. Term 2d Dept. 2015)
“The Court specifically rejects petitioner’s argument that the arbitrator improperly applied the “preponderance” standard of proof to the respondent’s defe

Up up and away June 22, 2015

Arnica Acupuncture, P.C. v Interboro Ins. Co.

Motion No: M-6186

Slip Opinion No: 2015 NY Slip Op 76558(U)

Decided on June 18, 2015

Appellate Division, First Department, Motion Decision

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This motion is un

IME cut off not rebutted June 22, 2015

Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 2015 NY Slip Op 50900(U)(App. Term 1st Dept. 2015)
“[defendant] establish[ed] that it timely denied the claims based on the independent medical examination (IME) report and follow-up report of its examining orthopedic doctor, which set for

Declaratory judgments: the minimum necessary to obtain collateral estoppel effect June 22, 2015

Metro Health Prods., Inc v Nationwide Ins., 2015 NY Slip Op 25203 (App. Term 2d Dept. 2015)
The short-form order:
“[Nationwide]’s unopposed motion for a default judgment on this declaratory judgment action pursuant to CPLR 3215 is granted, there being no opposition.   Settle judgment o

Some fines issued June 21, 2015

Longevity Med. Supply, Inc. As Assignee of Osmanli Tamezan v American Tr. Ins. Co., 2015 NY Slip Op 76854(U)(App. Term 2d Dept. 2015)
Appellant Longevity Medical Supply, Inc. as Assignee of Osmanli Tamezan, having appealed to this court from an order of the Civil Court of the City of New York, Quee

Unitrin is now followed in the Fourth Department June 21, 2015

Interboro Ins. Co. v Tahir, 2015 NY Slip Op 05378 (4th Dept. 2015)
LAW OFFICE OF JASON TENENBAUM, P.C., GARDEN CITY (JASON TENENBAUM OF COUNSEL), FOR PLAINTIFF-APPELLANT.
“Plaintiff appeals from an order and judgment that, inter alia, denied its motion pursuant to CPLR 3215 for leave to enter

What is a prima facie case? I still do not have an answer June 11, 2015

Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787 (2015)
We are one step closer to day to finally answering this question, and similarly one more step backward.  The Court of Appeals held right at the outset:
The Holding
(1) “We hold that a plaintiff demonstrates prima

  1. kurt lundgren says:

    yES, HOW DO YOU TURN THE CAPS OFF?

    STEFAN IS 100% CORRECT – THE DECISION IS STRAIGHTFORWARD.

    yOUR READING WAY TOO MUCH INTO THIS JASON,

    GOOD DECISION, WELL DONE STEFAN AND DAVE.

  2. STEFAN BELINFANTI says:

    PRETTY STRAIGHT FORWARD (HOW DO I TAKE CAPS OFF?). 1) THE BUSINESS RECORDS RULE WAS NOT RESURRECTED, OR CHANGED IN ANY WAY. PRIMA FACIE = PROOF OF MAILING in admissible form OF THE BILLS IN dispute and the bills being overdue. ONE WAY TO DO THAT – but not the only way – IS THROUGH 4518. AS FAR AS THE PARTICULARS OF THIS CASE ARE CONCERNED, the court ruled that the plaintiff did so through 4518 (proof of mailing forms were attached). so as far as “mailing” is concerned, you have to have admissible evidence, and one such way is through 4518. but as far as the bill forms themselves, they are not hearsay, so you don’t have to use any exception to get them in, 4518 or otherwise. in fact if you read the decision closely, you will see that you don’t have to get them in at all, 2) regarding bills that are timely denied, the court did not decide what a prima facie case entails. i don’t think anything will change as to this burden in either department.

Civil judgments cannot be used to question a party’s credibility June 3, 2015

Quiroz v Zottola, 2015 NY Slip Op 04627 (2d Dept. 2015)
“Moreover, the trial court did not improvidently exercise its discretion in limiting the cross-examination of Zottola. The court properly limited the plaintiffs’ cross-examination of Zottola regarding his prior employment and negat