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A two strike rule on Law Office Failure July 31, 2015

Bank of N.Y. v Mohammed, 2015 NY Slip Op 06397 (3d Dept. 2015)
“We affirm. In order to vacate a dismissal pursuant to 22 NYCRR 202.27, plaintiff was required to demonstrate a reasonable excuse for its failure to appear and a potentially meritorious cause of action (see 9 Bros. Bldg. Supply Co

The learned treatise exception to the hearsay rule July 31, 2015

How many times have you tried a case where the expert admits that a particular journal has broad support is a standard of care in the community but is not authoritative.   The Fourth Department wrote something on this:
“Defendant’s further contention that the court erred in permitting

Staged accident not proven – very sloppy papers July 21, 2015

This just goes to show the attention to detail that is necessary in order to prevail on summary judgment on a staged accident.
Nationwide Gen. Ins. Co. v Linwood Bates III, 2015 NY Slip Op 06122 (2d Dept. 2015)
(1) The plaintiff asserted that several defendants failed to attend their scheduled depos

  1. JOhn Doe says:

    I WONDER WHAT ARGUMENTS WERE MADE ON APPEAL?

    tHE BIGGEST THING THAT JUMPS OUT AT ME IS THAT ORTIZ’S TRANSCRIPTS WOULD BE ADMISSIBLE AS PARTY-ADMISSIONS (PRESUMABLY THE PLAINTIFF HAD THE GOOD SENSE TO NAME THE ASSIGNORS AS NECESSARY PARTIES IN THIS dj ACTION).

    aDDITIONALLY, IF ORTIZ AND THE OTHER ASSIGNORS DEFAULTED, WOULDN’T THOSE DEFAULTS CONSTITUTE ADMISSIONS WHICH THE PROVIDERS WOULD THEN NEED TO REBUT ON A SJ MOTION (OR ALTERNATIVELY, COULDN’T IT JUST BE ARGUED THAT THE PROVIDERS ARE sol, SINCE AN ASSIGNEE CANNOT ENJOY GREATER RIGHTS THAN ITS ASSIGNOR)?

    WOULD LOVE TO SEE THE RECORD ON APPEAL ON THIS ONE..

Trial De Novo not tenable July 21, 2015

Avenue C Med., P.C. v Encompass Ins. of MA, 2015 NY Slip Op 06101 (2d Dept. 2015)
“The statute permits an insurer or a claimant to institute a court action to adjudicate the dispute de novo where the master arbitrator’s award is $5,000 or greater” (Green v Liberty Mut. Ins. Co. Tru

Declaratory judgment reversed on appeal July 21, 2015

Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc., 2015 NY Slip Op 05891 (1st Dept 2015)
“The IAS court denied plaintiffs’ motion for a default judgment, concluding that plaintiffs had not submitted sufficient proof of mailing the letters notifying defendant of the scheduled EUOs We no

Objective evidence necessary July 21, 2015

Easy Care Acupuncture, P.C. v A. Cent. Ins. Co., 2015 NY Slip Op 50973(U)(App. Term 1st Dept 2015)
That the assignor may have subjectively reported during the course of the peer review examination that he “feels worse” after two months of treatment did not, by itself and without any obje

IME no-show from the First Department July 21, 2015

S.A. Med., P.C. v Praetorian Ins. Co., 48 Misc 3d 128(A)(App. Term 2d Dept. 2015)
“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for inde

Use and operation July 21, 2015

Complete Med. Care Svcs of NY, P.C. v N.Y.C. Tr. Auth., 2015 NY Slip Op 25236 (App. Term 2d Dept. 2015)
This proved to be the most interesting of the cases that I saw.
(1) “In support of the motion, defendant proffered a transcript of a hearing held pursuant to General Municipal Law § 50-h, a

An insufficient rebuttal July 21, 2015

Bronx Mega Care Med, PLLC v Federal Ins. Co., 2015 NY Slip Op 51060(U)(App. Term 2d Dept. 2015)
“In opposition, plaintiff failed to submit medical evidence sufficient to raise a triable issue of fact as to medical necessity (see e.g. Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip

On medical necessity July 21, 2015

Huntington Regional Chiropractic, P.C. v Truck Ins. Exch., 2015 NY Slip Op 51068(U)(App. Term 2d Dept. 2015)
“In support of its motion, defendant submitted, among other things, two independent medical examination reports, one from a chiropractor and one from an orthopedist, which set forth a f