Monte Guest Speaker at the New York State
Bar Association CLE
March 2009 - Rebecca E. Monte, a partner with
the law firm of Chelus, Herdzik, Speyer & Monte, P.C.
will be a guest speaker at the New York State Bar
Association CLE "Practical Skills - Basic Elder Law
Practice". Ms. Monte will present on the topic of "Basic
Medicaid Eligibility Rules". Her discussion will focus
on Rules for Transfer of Assets, Spousal Issues and
Right to Recovery. Rebecca E. Monte's knowledge of
these topics comes from many years of successful
work in this area.
Monte Guest Speaker at the Erie Institute of
Law CLE
March 2009 - Rebecca E. Monte, a partner with
the law firm of Chelus, Herdzik, Speyer & Monte, P.C.
will be a guest speaker at the Erie Institute of Law
CLE "Practicing Elder Law, Now that the Dust of the
DRA Has Settled Program". Ms. Monte will present on
the topic of "Medicaid Planning - Options, Tactics and
Strategies".
Quick Links...
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DEPOSITION TESTIMONY AND MEDICAL RECORDS ARE ENOUGH TO ESTABLISH NO SERIOUS INJURY
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In Charley v. Goss, WL 435325 (Court of
Appeals 2009), the Court of Appeals affirmed the
Appellate Division's decision that defendants
established their burden that the plaintiff did not
sustain a serious injury through the submission of the
plaintiff's own deposition testimony and medical
records.
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DEGENERATIVE DISC DISEASE AND HERNIATIONS NOT INCONSISTENT
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In Escobar v. Guzman, WL 537531 (1st Dept.,
2009), defendants brought a motion for summary
judgment based on defendant's expert finding that
plaintiff suffered from degenerative disc disease. In
opposition, plaintiff submitted a MRI report of
herniated discs. The Appellate Division found the MRI
report to raise a triable issue of fact. The Appellate
Division determined that degenerative disc disease
and herniated discs are not inconsistent and
sustained the lower Court's denial of summary
judgment.
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INSUFFICIENT NOTICE DESTROYS COVERAGE
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In Wells Fargo Bank, N.A. v. Zurich American
Insurance Co., WL 465779 (1st Dept., 2009)
Wells Fargo had a policy of insurance with Zurich.
The policy covered Wells Fargo if a borrower defaulted
on a loan and an environmental issue caused harm to
the collateral which secured the loan. The insurance
policy's notice requirement was extremely detailed.
Although Wells Fargo provided notice to Zurich, it did
not comply with the specific policy requirements. As
such, the Appellate Division held coverage was not
available to Wells Fargo.
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AFFIDAVIT INSUFFICIENT TO ESTABLISH 90/180 CLAIM
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In Cruz v. Aponte, WL 537650 (1st Dept.,
2009), plaintiff's own deposition testimony was
submitted by the defendant to refute plaintiff's 90/180
day claim. Plaintiff, at her deposition, stated she was
unable to perform her usual and customary activities
for five weeks following the accident. In opposition, the
plaintiff introduced an affidavit stating she was unable
to perform her usual and customary activities for five
months following the accident.
The Appellate Division affirmed the lower Court's
dismissal of the plaintiff's complaint. The Appellate
Division further stated that the affidavit of the
plaintiff "appears to have been tailored to avoid its
[deposition testimony's] consequences" and is not
supported by medical evidence.
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PLAINTIFF'S RANGE-OF-MOTION MUST BE COMPARED TO A NORMAL RANGE-OF-MOTION
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In Walker v. Public Administrator of Suffolk County,
et al, WL 613875 (2nd Dept., 2009) defendants all
relied on the same affirmed medical reports to refute
plaintiff's claim of serious injury. The reports included
those from an orthopedic surgeon and a neurologist.
The reports, although noting plaintiff's range-of-
motion, failed to compare those findings to what is
considered a normal range-of-motion. As such, the
Appellate Division reversed the lower Court's decision
and denied defendants' summary judgment.
Prepared by: Katy M. Hedges
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