New York

How do you spell "Pyrrhic victory"?

Posted on December 16, 2010
A new post. It's only been like a year and a half. Anyway, there's a new Appellate Division case you should read.Matter of Carothers v GEICO Indem. Co., __ A.D. 3d, __, 2010 NY Slip Op 09256 (2d Dep't, 2010).So Carothers did not get their bills into evidence because the sole witness at trial worked for a third-party billing company, and said billing company did not create the bills...

Coverage Counsel

Posted on July 30, 2009
I'm not sure how it's possible, but apparently I never, before now, had a link in my blogroll to Roy A. Mura, Esq.'s wonderful blog Coverage Counsel. Mr. Mura's posts deal with no-fault issues, as well as a much wider range of insurance law matters.

Provider EUOs

Posted on July 23, 2009
David M. Gottlieb, Esq. has previously covered this issue at No-Fault Paradise, but it seems to me that it's worth some additional attention.On June 24, 2009, the NYS Insurance Department issued an opinion letter entitled "Examinations Under Oath of Assignees"...

An Addition to the Blogroll

Posted on July 21, 2009
I've been meaning to add it in for a while, but now that I finally got around to updating the layout of the blog (which shouldn't look much different to the reader, hopefully), I've added a link to No Fault Law - A Defense Attorney's Perspective. It's worth taking a look at.

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The Death of the Assignment of Benefits?

Posted on July 16, 2009
In 2007, the Court of Appeals reaffirmed the longstanding Appellate Division case law "that a carrier's failure to seek verification or object to the adequacy of claim forms pursuant to 11 NYCRR 65-3.5 precludes it from interposing any defenses based on such deficiencies...

State Farm v. Langan

Posted on June 25, 2009
In State Farm Mut. Auto. Ins. Co. v. Langan, 55 A.D.3d 281 (2d Dep't, 2008), the Appellate Division, 2d Department, held that, regarding no-fault benefits, a loss is "accidental" where the incident is "unexpected, unusual and unforeseen" from the point of view of the injured person...

EUO No-Show by Patient Subject to Preclusion

Posted on April 03, 2009
I'll have a post regarding the unsurprising result in LMK later, but there's a new decision from the Appellate Division, Second Department that requires some attention.The decision in Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 2009 NY Slip Op 02589 (App...

MVAIC & Qualified Persons

Posted on March 03, 2009

Timeliness of EUO Requests

Posted on February 18, 2009
This morning brings us the Appellate Term, 2d Department's decision in Great Wall Acupuncture, P.C. v. New York Central Mutual Insurance Company, 2009 NYSlipOp 50224(U) (App. Term, 2d Dep't, 2009).In a summary judgment motion, "defendant asserted that it timely denied plaintiff's claims based on plaintiff's owner's failure to appear for scheduled examinations under oath (EUOs)...

LMK Update

Posted on February 12, 2009
The newly-shaven David M. Gottlieb, Esq. has a great post over at No-Fault Paradise about the oral arguments before in the Court of Appeals in LMK Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 46 A.D.3d 1290 (3d Dep't, 2007)Based on David's post, both State Farm/Rivkin Radler and the Insurance Dep't...

Fraud in the Procurement, Part 2

Posted on February 06, 2009
The Appellate Division, 4th Department has issued a decision today that is relevant to my post last week regarding the defense of fraudulent procurement.At the end of that post, I noted that "procurement is fraudulent where there are material misrepresentations and, had the carrier had known the truth, the policy would not have otherwise been issued...

Verification

Posted on February 05, 2009
The Appellate Term's decision in A.B. Med. Servs., PLLC v. Country-Wide Ins. Co., 2008 NYSlipOp 52651(U) (App. Term, 2d Dep't, 2008) was posted today.The decision is kind of messy, covering various issues briefly, but there's one interesting point. The Appellate Term found the following: "Since the affidavit of defendant's no-fault litigation supervisor lacks specificity to support the assertion that defendant did not receive the verification it requested, it was insufficient to establish that the verification was still outstanding and, thus, that defendant's time to pay or deny the claims was tolled...

Excuses, Excuses

Posted on January 30, 2009
This morning brings us the Appellate Division's decision in Westchester Med. Ctr. v. Hartford Cas. Ins. Co., 2009 NY Slip Op 00528 (App. Div., 2d Dep't, 2009).There is nothing groundbreaking here, although it does potentially add to the insurance carriers' roster of what counts as a "reasonable excuse" for the purposes of vacating a default...

Fraud in the Procurement

Posted on January 29, 2009
Today, we turn to a fundamental aspect of New York's insurance laws. The basic question is: can an insurance carrier cancel a New York automobile insurance policy retroactively? The basic answer is: no. As we'll see, the legal acrobatics involved in getting to that answer has an important impact on no-fault litigation...

Happy Holidays

Posted on December 23, 2008
Thanks for all the kind feedback on my last post. One of my goals for 2009 is to actually dedicate some time to reviving this, so wish me luck.Happy and healthy holidays to everyone. I hope you made the most of the office holiday parties...

Appealing, to Infinity and Beyond

Posted on December 19, 2008
Earlier this week, the Appellate Division, 2d Department, a href="http://www.nycourts.gov/reporter/motions/2008/2008_92186.htm"granted defendant's leave to appeal/a from the decision of the Appellate Term in a href="http://www.nycourts.gov/reporter/3dseries/2008/2008_28271...

An Appeal of Interest

Posted on July 01, 2008
This morning, the Court of Appeals has granted State Farm leave to appeal the decision of the Appellate Division, Third Department in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 A.D.3d 1290 (3d Dep't, 2007).

The Highest Court

Posted on November 20, 2007
Where a carrier fails to timely request verification of an assignment of benefits, that carrier is precluded from contesting the validity of the assignment. Even when the assignment lacks the signature of the assignor. So sayeth the Court of Appeals today in Hospital for Joint Diseases v...

D'oh-shi

Posted on November 16, 2007
On March 16, 2007, the Appellate Term, 2d Department issued its decision in Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc.3d 42 (App. Term, 2d Dep't, 2007). In sum, the Court held that, where timely claim verification requests are made to a third party, and such verification is never supplied, a provider's suit for reimbursement of such a claim remains premature...

Edwards Nofaulthands

Posted on November 09, 2007
New York City Civil Court, Kings County Judge, the Honorable Genine D. Edwards, has had two no-fault trial decisions from this week picked up for publication today by the NYS Law Reporting Bureau.All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins...

Fraudulent Fraud

Posted on September 25, 2007
At the suggestion (almost a threat, really) of David M. Gottleib, Esq., I'm reposting a comment of mine from the previous entry. An anonymous insurance defense attorney asked: "Provider fraud should NEVER be waived. When did fraud stop being fraud?" I said:The better question is actually: when did fraud start being fraud? Answer: when catchphrases got the better of good lawyering...

More and More Appealing

Posted on September 22, 2007
In a move that likely fell under most radars, the Appellate Division, 2d Department has granted the defendant's motion for leave to appeal their decision in Fair Price Medical Supply Corp. v. Travelers Indem. Co., 42 A.D.3d 277 (2d Dep't, 2007) to the Court of Appeals...

I Always Feel Like Somebody's Watching Me

Posted on August 28, 2007
In Delta Diagnostic Radiology, P.C. v Chubb Group of Ins, 2007 NYSlipOp 27345 (App. Term, 2d Dep't, 2007), the Appellate Term has finally made explicit, as I previously argued on this blog, that a party need not produce an affidavit from someone whose duty it is to ensure compliance with standard procedures when attempting to create a presumption of mailing...

Shock the Conscience

Posted on July 24, 2007
In a decision of likely interest to defense counsel, Judge Howard S. Miller of the District Court, Nassau County, Hempstead Part issued a Decision/Order concerning settlement stipulations often done by the law firm of Israel, Israel & Purdy, LLP. See Omega Diagnostic Imaging, P...

Barnes & No-fault

Posted on July 18, 2007
According to the sidebar on David M. Gottlieb, Esq.'s blog, No-Fault Paradise, he's currently re-reading David Foster Wallace's 1996 novel 'Infinite Jest'. I admire that Mr. Gottlieb is still able to get any reading done; I have had a tough time of keeping at it since law school...

Carsherchesputin

Posted on July 18, 2007
I just wanted to bring to the top a comment posted last night to an old post on this blog:At Tuesday, July 17, 2007 8:45:00 PM, Anonymous said...Things have been heating up in the Carothers, Sher, Chess and Rasputin arena as the connections we all know exist are surfacing so ever slightly...

Giving Someone a Widgie

Posted on June 15, 2007
Below please find a new widget I have created for the blog. Feel free to click "copy me" (which can be found when you mouseover the widget's title bar) and embed on your own site or blog. (Don't worry, I'm not holding my breath.)Thanks to Thomas Swartz, Esq...

Schepp, Part X_X

Posted on June 11, 2007
The Appellate Term, Second Department released its long awaited decisions today in Boston Post Rd. Med. Imaging, P.C. a/a/o Adrian Black v. Progressive Ins. Co., 2007 NYSlipOp 51173(U) (App. Term, 2d Dep't, 2007) and Boston Post Rd. Med. Imaging, P.C...

A Lifelong Swan Song

Posted on June 05, 2007
For what its worth, the BG&S website has some articles I've authored, each of which should have been published by now in "The Suffolk Lawyer," which is put out by The Suffolk County Bar Association:No-Fault MRI Providers' Suits Stayed Pending Declaratory Judgment ActionShould Courts Referee No-Fault Referrals? Part 1Should Courts Referee No-Fault Referrals? Part 2All of the articles should be of interest to readers of this blog...

A Short Notice

Posted on June 05, 2007
Please be advised that I am no longer associated with the office of Bruno, Gerbino & Soriano, LLP. I can still be contacted at djtoell @ gmail.com. A resume is available upon request for any interested persons. For the immediate future, I will be in Civil Court, Kings County for per diem appearances.

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