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Firm Victory
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 Hillcrest Radiology Associates v. State Farm Mutual Automobile Insurance Company, 28 Misc.3d 129(A), 2010 WL 2802725 decided on July 16, 2010 was a victory for our firm on this first party claim where the lower Court dismissed the matter for failure to prove medical necessity. This case highlights the importance of a timely motion on a first party action where the plaintiff is unable to put forth a rebuttal affidavit in opposition to the motion on medical necessity. These cases are "winnable" when you have the motion papers in proper form. The Appellate Term decision stated, "Plaintiff does not dispute that defendant established that it had timely denied the claim at issue on the ground of lack of medical necessity. In addition, in support of its motion for summary judgment, defendant submitted an affirmed peer review report setting forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical services at issue. Defendant's showing that the services at issue were not medically necessary was unrebutted by plaintiff. Therefore, defendant's motion for summary was properly granted (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007])." Read full decision here. |
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Decisions of Note
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|  Gracy Thomas got on a bus in the summer of 2005 and headed off on a trip down the Garden State Parkway in New Jersey. Unfortunately, the bus she was on was involved in a collision with an uninsured vehicle driven by a Mr. Dock. I doubt Gracy realized that day, that five years later her case would wind up in the Appellate Division and serve as a primer on a complicated insurance coverage issue concerning a conflict of laws analysis and priority of coverage.
In the Matter of State Farm Mutual Automobile Insurance Company v. Gracy N. Thomas, et al., 2010 WL 2901780 N.Y.A.D. 2 Dept.,2010. decided by the Appellate Division, Second Department, on July 27, 2010 presents a discourse on the precise rules regarding cancellation of coverage and the notice of cancellation requirements. Had the accident occurred in New York, a different result would have occurred.
New York law requires strict compliance with the Vehicle and Traffic Law § 313 mandate for a notice of termination to be deemed effective as to third parties (See Vehicle and Traffic Law § 313[1], [2]; Matter of Progressive N. Ins. Co. v. White, 23 A.D.3d 477, 478, 808 N.Y.S.2d 108; Matter of Travelers Indemn. Co. v. Shepard, 125 A.D.2d 681, 681-682, 509 N.Y.S.2d 867); Progressive Classic Ins. Co. v. Kitchen 46 A.D.3d 333, 850 N.Y.S.2d 1 N.Y.A.D. 1 Dept., 2007. Failure to comply with the statute will void the cancellation and provide coverage.
In this matter Mercury Indemnity Company of America argued the cancellation notice sent was effective despite the lack of compliance with the applicable New Jersey statute. (NJ Stat Ann § 17:29C-8). The Appellate Division concluded, "Mercury's notice of cancellation with a purported effective date of cancellation of less than 15 full days from the date of mailing failed to comply with the statutorily mandated 15-day notice period (see NJ Stat Ann § 17:29C-8). However, the petitioner is incorrect as to the consequences of this error. The effect was not to render the cancellation a nullity, in effect continuing the policy in perpetuity regardless of the insured's nonpayment of premiums or lack of communication between insurer and insured. Rather, the effect was simply that the cancellation was effective the following day, August 24, 2005, by which time the full 15-day period had elapsed and Dock had not paid the premium (see Fiduccia v Intercontinental Restaurateurs, Inc., 310 NJ Super 52, 707 A.2d 1367; see also Kovacs v. Kunick, 2005 WL 4655384, *8, 2005 U.S. Dist LEXIS 43225, *26 [ED N.Y.2005]). Thus, the policy was effectively canceled three, rather than four, days prior to the accident, and, as the Supreme Court properly found, Dock's vehicle was, indeed, uninsured at the time thereof. After concluding the Dock vehicle was in fact, uninsured, the Court went on to discuss the priority of coverage puzzle. Here, although State Farm lost on the cancellation issue, they prevailed on the priority of coverage argument indicating the insurance carrier for the bus should provide the first layer of coverage for the passenger, Gracy Thomas on the UM claim. The Court found, "National Interstate's policy (covering the bus owner) constituted the primary insurance policy for all coverage, and Thomas may resort to the petitioner's policy (State Farm) only in the event that National Interstate's policy is insufficient to fully compensate her, and then "only to the extent that it exceeds the coverage of a higher priority policy."
Click here to read full decision.
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The streets of Brooklyn can be unforgiving at times and those of us that hail from this great Borough beam with pride when we are asked, "Where did you grow up?" To be a defendant in Kings County Supreme Court presents its own special challenges, and often the only recourse is that stately marble building that houses the Appellate Division, Second Department at 45 Monroe Place.
The July 6, 2010 decision of the Appellate Division, Second Department in Furtow v. Jenstro Enterprises, Inc. 903 N.Y.S.2d 754 (N.Y.A.D. 2 Dept. 2010), is a good example of the obstacles faced on a day to day basis by a defendant in Brooklyn. Here, the plaintiff moved for summary judgment in a motor vehicle accident case involving three vehicles on the Brooklyn-Queens Expressway. Our client submitted an affidavit, in proper form containing the customary jurat, alleging an issue of fact, that he was not liable for this accident. The lower court rejected the affidavit executed by our client, on the ground that it did not contain the language "under penalty of perjury", although it did state twice that the insured was sworn when he executed the affidavit.
The lower Court cited precedents from 1881, 1910 and 1939 claiming the defendant's affidavit was insufficient to show that he conscientiously took upon himself the obligation of an oath to tell the truth in a form calculated to "awaken the conscience and impress the mind." Judge Schack cited Milmoe v. Meyer, 15 N.Y.S.2d 899 [N.Y.Co.Ct. 1939], Bookman v. City of New York, 200 N.Y. 53, 93 N.E. 190 [NY 1910], and O'Reilly v. People, 41 Sickels 154, 86 N.Y. 154, 10 Abb. N. Cas. 53, 40 Am.Rep. 525 [1881] and rejected the affidavit and found our client at fault. The Appellate Division reversed stating, "Contrary to the Supreme Court's determination, the affidavit submitted by the defendant Allen Yam Ching was in admissible form and should have been considered by the court in opposition to the plaintiff's motion for summary judgment. "There is no specific form of oath required in this State, other than that it be calculated to awaken the conscience and impress the mind of the person taking it in accordance with his or her religious or ethical beliefs" (Feinman v. Mennan Oil Co., 248
A.D.2d 503, 504, 669 N.Y.S.2d 892; see CPLR 2309[b]).
"In addition, a notary, in the absence of a showing to the contrary, is presumed to have acted within his or her jurisdiction and to have carried out the duties required by law" (Feinman v. Mennan Oil Co., 248 A.D.2d at 504, 669 N.Y.S.2d 892; see Collins v. AA Truck Renting Corp., 209 A.D.2d 363, 618 N.Y.S.2d 801). Here, Ching submitted an affidavit which recited that he was "duly sworn" and contained a jurat stating that the affidavit was "sworn to before" a notary public, who signed and stamped the document. On the record presented here, the form of the affidavit was adequate (see Sirico v. F.G.G. Prods., Inc., 71 A.D.3d 429, 896 N.Y.S.2d 61; Sparaco v. Sparaco, 309 A.D.2d 1029, 1030, 765 N.Y.S.2d 683; Feinman v. Mennan Oil Co., 248 A.D.2d at 504, 669 N.Y.S.2d 892; Collins v. AA Truck Renting Corp., 209 A.D.2d at 363, 618 N.Y.S.2d 801)."
Perhaps this case stands for more than the technical sufficiency of the standard jurat. This case is more of a study of the ethos of the Borough and the first rule of the schoolyard, don't let anyone push you around when you are right.
Read full decision here.
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 To be an effective advocate, you always have to look at a case from the other side's perspective. What your adversary is thinking is always on your mind at trial.
Consider the plight of plaintiff's counsel in the case of Adriana Constant who was involved in automobile collision in Astoria on December 28, 2000. Adriana was a 10 year old seat belted passenger in a car driven by her mother, that was involved in a two car accident at the intersection of 32nd Street and Astoria Blvd. Seven years after the accident the child undergoes septoplasty, corrective surgery to straighten the nasal septum, that she claimed was injured in the accident. What would plaintiff's counsel do in this scenario?
Is there a reasonable expectation of recovery? Would plaintiff's counsel give this case a try, especially since one of the defendants is a Kings County resident and the case can be venued in Brooklyn. Judge Debra Silber of Kings County Supreme Court dismissed this action for failure to prove a serious injury under New York Insurance Law § 5102(d) in her decision dated June 28, 2010 in the Matter of Constant v Shavis et. al. (Index No. 1973/05). The Court correctly reasoned that a deviated septum does not constitute a fracture under the statute citing Ives v. Correll 211 Ad2d 899 (Third Department, 1995). Likewise the surgery to correct the deviated septum does not, in itself, constitute a serious injury, Byrd v. Limo 61 Ad3rd 801 (Second Department, 2009); Ortiz v. Ash Leasing Co.63 Ad3rd 556 (First Department 2009). Here the seven year gap in treatment between the alleged injury and the surgery was impossible for the plaintiff to overcome on the issue of causation and the Court dismissed the claim.
Click here to read full decision.
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Losing a case after a jury trial is always difficult to swallow. As trial counsel, you believe in your case and want the best for your client. Every trial lawyer we know worth their salt, puts their heart and soul into a trial. Talking to the jurors after a loss can be hard but it is always instructive. You want to know what they felt was important and what they found to be lacking. Jurors usually give it to you straight and let you know why you lost. If they really dislike you or your client, they walk out of the jury room and refuse to talk to you.
In the Richmond County Civil Court action of Elzahr v. Palladino decided on July 13, 2010, Counsel for the plaintiff tried to turn his discussions with the jury after a loss to his advantage and resurrect his client's case rising like Phoenix from the ashes of defeat. Apparently two Jurors indicated to plaintiff's counsel after the verdict that despite the fact that they thought that both parties were negligent, they answered question number 1, "Was the defendant negligent?" "No" because they thought that by answering "yes" it would mean that they were finding the defendant completely at fault. Plaintiff attached to his motion to set aside the verdict affidavits of the two jurors which state that they both were confused by the verdict sheet, and that they each intended to find both the plaintiff and the defendant negligent and to apportion liability between them. Plaintiff's counsel also attached a third affidavit from the foreperson of the jury, who stated she also intended to find both parties negligent, but thought by answering the first question on the verdict questionnaire "yes", she would be finding the defendant completely at fault which was not her intention. (This may not have been Richmond's best and brightest group on this jury panel).
The Court ruled, "Ordinarily, jurors may not impeach their verdict once they are discharged (see Hersh v. New York City Tr. Auth., 290 AD2d 258, 259 [App Div, 1st Dept, 2002].) In two limited circumstances, courts have permitted the use of juror affidavits to impeach a verdict (see generally Moisakis v. Allied Bldg. Prods. Corp., 265 AD2d 457 [App Div, 2nd Dept, 1999], lv. denied 95 NY2d 752 [2000]; see also Hersh, at., 290 AD2d 258.)
The first exception is where the affidavits demonstrate that a ministerial error occurred in the jury's reporting of the verdict, yet the alleged error may not concern issues of how the jury's verdict was reached (see generally Moisakis, 265 AD2d 457). The second exception to the rule prohibiting juror impeachment of a verdict mandates proof, on the trial record, evidencing a basis for finding juror confusion (Wingate v. Long Island Railroad 92 AD2d 797 [App Div, 1st Dept, 1983].). Contrary to the plaintiff's contention, this court viewing the facts in the light most favorable to the plaintiff herein, sees no valid line of reasoning and permissible inferences which could possibly have led rational individuals to conclude, based upon the evidence presented, that the defendants were liable. In sum, the plaintiff's version of the events was not, "contrary to common experience, requiring defendant's testimony to be disregarded as being without evidentiary value (Cruz v. New York City Tr. Auth., 31 AD3d 688, 690 [App Div, 2nd Dept, 2006]; affd. 8 NY3d 825, 828 [2007].)" We admire the effort, albeit a losing one.
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