Featured Employee
VICKRAM KOOBLALL
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Vickram Kooblall is the Director of Operations at Picciano & Scahill, P.C. Vic is a graduate of Pace University and holds advanced certifications in Information Technology.
Vic is in charge of the day-to-day operations at the firm and juggles his personnel duties with overseeing the IT department. He developed and implemented our custom built software case management program that is the engine that runs the firm. Vic is one of the many keys to our success and results. |
Results that Matter
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Congratulations to
Tim Jonesfor a defense verdict in Bronx County before Judge Sherman in the case of Roberto Quiroga and Claudia Sandoval v. Church of God of Third Avenue. (7128/2003) On October 15, 2010 the jury returned a unanimous verdict with regard to both Roberto Quiroga and Claudia Sandoval. The jury's decision was that neither had breached the threshold of serious injury.
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iNews Issue: 21
| October 2010 | |
Body Snatching
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|  It is Halloween and there actually is an October 2010 appellate case on body snatching so in keeping in the season we might as well discuss the evidentiary ruling in the case of Scott Batjer. Poor Scott was convicted in the Monroe County Court of body stealing, opening graves, unlawful dissection of a human body, and scheme to defraud in the second degree. His appeal of the conviction was denied by the Appellate Division, Fourth Department On October 1, 2010. (People v. Batjer 908 N.Y.S.2d 285). Scott tried to get out of this unholy mess by claiming the prosecution failed to establish that records admitted into evidence at trial fall within the business records exception to the hearsay rule.
An employee of Regeneration Technologies, Inc., a human tissue processing company (would you tell anyone what you did for a living if you worked there) testified at trial about records kept by another company, BioMedical Tissue Services, a human tissue procurement agency (procurement as opposed to processing I guess). The trial Court allowed the records into evidence having failed to establish the requisite foundation for the admissibility of the documents in question as business records (CPLR 4518(a);CPL 60.10). Nevertheless, the conviction was upheld by the Court on appeal stating, "we conclude that the court's error in admitting those records is harmless because the proof of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted if not for the error."
Scott Batjer was a funeral director and owner of the Profetta Funeral Chapel in Irondequoit and Webster, New York. He and other defendants were charged with secretly removing skin, bone and other body parts from dozens of corpses awaiting cremation at Rochester funeral homes. Very Spooky indeed!
Read more here. |
| A Sisterly Affair | |  Valerie Spielman and Cindy Gallo were sisters who both sought counseling at the Grace Gospel Church of Suffolk in Patchogue from the Church's pastor, Lawrence Carrino. Somehow the counseling sessions ended up at the Terryville Motor Lodge where the Pastor engaged in sexual affairs with both sisters. They later sued the Church and the Pastor alleging breach of fiduciary duty and intentional infliction of emotional distress.
The Appellate Division, Second Department in its decision dated October 19, 2010, Spielman v. Carrino ---N.Y.S.2d ----, 2010 WL 4117750 N.Y.A.D. 2 Dept., 2010. dismissed the claim against the Church under CPLR 3211 (a) (7) indicating the Church could not be held liable under the doctrine of respondeat superior or for negligent supervision. Relying on the 2009 Court of Appeals decision, Doe v. Roman Catholic Diocese of Rochester, 12 N.Y.3d 764, 907 N.E.2d 683 N.Y., 2009. The Court held "a fiduciary relationship must exhibit the characteristics of "de facto control and dominance" (Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 N.Y.3d 15, 21, 862 N.Y.S.2d 311, 892 N.E.2d 375 [2008]) In order to demonstrate the existence of a fiduciary duty between a cleric and a congregant involved in a formal counseling relationship, "a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue" ( Marmelstein, 11 N.Y.3d at 22, 862 N.Y.S.2d 311, 892 N.E.2d 375)."
The sisters alleged they were "uniquely vulnerable and incapable of self protection" however, the Court noted they both ended the affairs after they found out the Pastor was having affairs with both of them. Rev. Carrino was found to be acting outside the scope of his employment with acts that were "unrelated to the furtherance of the employer's business". Rev. Carrino can now be found in Burnsville Minnesota, perhaps a prescient for a future address.
Read full decision here.
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| The "SUM" Total of it | | 
We have recently handled an SUM matter in which the question before the Court was, "If the adverse motor vehicle tendered its limits of $50,000.00 to three persons, each person receiving less than $25,000.00, but exhausted the policy, can they make a SUM claim for the difference in what they received and $25,000.00?
This question has been interpreted by the Courts in various fashions; some Courts allowing them to recover the difference and other Courts not allowing them. The numerous carriers that we work with have handled this matter differently as well.
In the matter that we handled, the adverse carrier had tendered to three (3) people their full $25,000.00-$50,000.00 liability policy and the Respondents/Defendants made a claim under their $25,000.00/$50,000.00 UM policy. Two of the people had received $21,250.00 and one person received $7,500.00. The person making the SUM claim in our matter had received the $7,500.00.
There are examples of SUM breakdowns and pay-outs in New York Rules and Regulations 60-2.2. The four examples of SUM limitations, however, do not address this specific situation. They address the normal situation of two claimants receiving the full policy and the SUM limit being higher than the Bodily Injury limitation. The rationale by Respondent is that he received $7,500.00 and his UM policy calls for $25,000.00 per person and $50,000.00 per accident.
The rationale on the defense side is that the adverse car had a $25,000.00/$50,000.00 Bodily Injury Policy and the UM limit is $25,000.00/$50,000.00. This was recently resolved in a Court of Appeals case, Allstate Insurance v Rivera, 12 N.Y.3d 602 [2009] which was heard in conjunction with Clarendon National Insurance Company v New News, 12 N.Y.3d 602 [2009]. These were two cases, where two different Appellate Departments came to two different conclusions. The Court of Appealsruled in a 5 to 2 decision in favor of the Defendant.
The Court held that the reading of Insurance Law 3420[f][2], a well settled limitation of this statute and Regulation 35-d together, requires a finding that the SUM coverage is not available. That is, SUM coverage cannot be triggered because:
1) Bodily Injury Liability Insurance coverage limits provided under the respective tortfeasor's policy were equal to the third-party bodily injury limits of the respective insurance carriers;
2) The payments made to the SUM claimants did not reduce the amount of the bodily injury provided under the tortfeasor's policy to an amount less than the third-party bodily injury liability limit of the respective carriers. See, 11 NYCCR 60-2.3; and
3) The expansion of coverage would provide the insured policy holder with more coverage then that provided to the injured third-party under his or her own policy.
In simpler terms, the Court has held that the test to apply requires a comparison of the bodily injury limits to the UM/SUM limits. Thus, if the bodily injury limits of the adverse car are $25,000.00/$50,000.00 and the SUM limits are $25,000.00/$50,000.00, no matter what the breakdown and no matter how many claimants there are, there can be no recovery and there is a full offset. This analysis would also apply if the adverse vehicle has a $100,000.00/$300,000.00 policy and the claimant's SUM policy was also $100,000.00/$300,000.00.
In conclusion, the Court is not looking to what the individual recovered because in all of these matters, once you have reached a third claimant, they amount will be splitting $50,000.00 and recovering less than $25,000.00, but the Court is looking to the policies without regard to the amount of claimants.
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PEER Review Practice
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Active Imaging, P.C. a/a/o Zorea Limor v. Progressive Northeastern Ins. Co. 2010 NY Slip Op 51842(U) by the Appellate Term, Second Department is an interesting case on the PEER review practice, so prevalent in First party No-Fault Litigation.
Defendant's motion for summary judgment, which included an affirmed peer review report, was granted by the civil court. Plaintiff appealed, contending that defendant's motion failed to annex the medical reports and records of third parties that were reviewed by the peer review doctor and listed in the peer review report. Since the plaintiff failed to rebut defendant's admissible medical evidence, defendant's motion was properly granted. A few thoughts to ponder before the finale.
First, if defendant included, as exhibits annexed to its motion, copies of all medical records and reports of third parties that were reviewed in preparation for the peer review report, said reports and records are hearsay and consequently, are almost never in admissible form. Here the Court found "Defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by establishing that it had timely denied the claims on the ground of lack of medical necessity and by submitting an affirmed peer review report from its doctor setting forth a factual basis and medical rationale for his conclusion that the services rendered were not medically necessary (citations omitted)."
In order to defeat this type of motion, which contains admissible medical evidence supporting a lack of medical necessity of the treatment rendered, the plaintiff must submit, in its opposition, admissible medical evidence supporting the medical necessity of the treatment rendered. The plaintiff's attack on the PEER review report in this case was unsuccessful with the Court concluding, "although defendant's peer review doctor listed the medical reports and/or records of third parties that he had reviewed in reaching his conclusion that the services rendered were not medically necessary.....these reports and records are not part of defendant's prima facie showing." The pendulum has swung back in the carrier's direction on the ever-evolving PEER review front (see Nir v. Allstate Ins. Co. 7 Misc.3d 544, 2005).
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Dram Shop Complaint
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 Appointing a designated driver is a common practice for young adults when they go out with the intent to consume alcohol. Ryan LUCIERE v. Michael RAHNER 2010 N.Y. Slip Op. 20398 decided by Judge Marber of Nassau County Supreme Court on September 29, 2010 involves a situation where the bar patrons, presumably friends of the designated driver, bought Mr. Rahner drinks at "The Nutty Irishman" bar and contributed to his intoxication.
When the Bar was sued on a dram shop complaint, they impleaded the patrons who bought the drinks for the designated driver. Counsel for the bar argued, "feeding Mr. Rahner shots and drinks knowing that he was to stay sober as he was the group's "designated driver" constituted negligent conduct. "The Court declined to carve out a special duty for the bar patrons, stating, "while there may have been a moral duty for the Third-Party Defendants, MAE and HOENIG, to not procure alcoholic beverages for the Defendant, RAHNER, the Court declines to impose a legal duty based on the facts presented here." The issue was one of proximate cause and foreseeability.
Obviously, plying your designated driver with drinks is not the exercise of sound judgment. Legal liability, however, on an indemnification claim, cannot be based solely on stupidity.
Read more here. |
| No Fault Fraud | | Judge Joseph Golia of the Appellate Term for the 2nd, 11th and 13th Judicial Districts, continues to be a beacon of light for Insurance carriers in the dark world of No-Fault Litigation. In A.M. Medical Services, P.C. as Assignee of Emily A. Mizheritskaya, Appellant v. Liberty Mutual Insurance Co (N.Y.S.2d ----, 2010 WL 4054088 App. Term) decided on October 5, 2010, Judge Golia dissented in a case that overturned a lower Court order granting the Carrier's motion to vacate a $15,000 default judgment.
The defendant alleged fraud claiming, "the claim forms plaintiff had annexed to its motions contained handwritten notations which were not on the original claim forms included with the complaint and provided to defendant". The majority held, despite the allegation of a fraud on the Court, the carrier failed in its efforts to show a reasonable excuse for the default and the vacatur of the default judgment was improper. Judge Golia, in his dissent noted, "Clearly, it is axiomatic that documents entered into the record should never be altered in any way, for any purpose. Such an alteration of submitted documents constitutes a meritorious defense of intrinsic fraud." He further noted the allegations of law office failure constituted sufficient grounds for a reasonable excuse for vacating the default. Here a $15,000 default order was reinstated supported by affidavits allegedly containing false statements and altered documents. In his March 12, 2010 report to the Governor and Legislature, State Insurance Superintendent, James Wrynn noted, "Data in a recent analysis by the Insurance Information Institute showed that the average no-fault claim cost in New York was $8,690 in 2009, surpassing the average of $5,615 in late 2004 by a significant 55 percent. I.I.I. reports that New York's no-fault claim costs are the second highest in the country and are 109 percent higher than the U.S. average of $4,152.
As an inevitable consequence, auto insurance rates for New York drivers are increasing as well. No-fault fraud is often perpetrated by highly organized criminal entities that can include corrupt medical clinics and corrupt attorneys, acting with staged accident/solicitation rings to submit fraudulent no-fault and bodily injury claims."
Clearly Legislative reform is needed in this arena as the Insurance Carrier continues to face an uphill battle in the Courts.
Read more here.
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| Decisions of Note | |
On July 23, 2009 a Village of Rockville Centre fire truck was responding to an emergency call when the right rear compartment door swung open and struck the plaintiff's vehicle (a 2005 Toyota Sienna) as the plaintiff's vehicle was stopped at a red light on Sunrise Highway near the intersection of North Park Avenue in the Village of Rockville Centre. The driver sued, seeking damages.
The Village sought dismissal under the rules applicable to an emergency vehicle. NY Vehicle and Traffic Law indicates the driver of an authorized emergency vehicle may: (1) stop, stand or park irrespective of the provisions of this title; (2) proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation; (3) exceed the maximum speed limits so long as he does not endanger life or property; and (4) disregard regulations governing directions of movement or turning in specified directions (Vehicle and Traffic Law § 1104[b] ). See Kabir v. County of Monroe,68 AD3d 1628, 1629-30 [4th Dept 2009, "the statute exempts a driver whose operation of an emergency vehicle falls within the four categories of subdivision (b) from the consequences of his of her ordinary negligence, rendering him or her liable only for conduct constituting the higher standard of reckless disregard for the safety of others."
In Ayers v. O'Brien (13 NY3d 456 at 459), the Court of Appeals held that "the purpose of the statute is to give operators of emergency vehicles the freedom to perform their duties unhampered by the normal rules of the road". Judge Gary F. Knobel in his decision dated September 30, 2010, denied the motion for dismissal indicating the issue was not the operation of the fire truck as an emergency vehicle, but rather the negligent maintenance of the fire truck by the Village, outside the scope of the emergency rules that apply to a responding fire truck.
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Appellate Decision
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Moray v. Koven & Krause, Esqs. 2010 WL 4175036 decided by the Court of Appeals on October 26, 2010 contains all of the classic elements for legal malpractice: a suspended attorney trying to save a case he started, a summons with notice, a motion to dismiss, and improper pleadings in opposition to the motion. Here the Court of Appeals resurrected a case that was dismissed by Judge Smith of Westchester County in 2008 and which dismissal was upheld by the Appellate Division in 2009 (62 A.D.3rd 765).
On appeal, plaintiff was represented by counsel. His new attorney invoked CPLR 321(c), "[i]f an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs." The Court of Appeals took the unusual step of allowing a litigant to raise an issue for the first time on appeal. Judge Read, writing for the majority stated, "We are dealing with a statute intended to protect litigants faced with the unexpected loss of legal representation. And there is no indication in this record that plaintiff sought to raise CPLR 321(c) only after having conducted his lawsuit pro se for some period of time after his attorney became disabled (cf. Telmark, Inc. v. Mills, 199 A.D.2d 579, 580-581 [3d Dept 1993]).
As a general rule, unrepresented litigants should not be penalized for failing to alert a trial court to the existence of an automatic stay created for the very purpose of safeguarding them against adverse consequences while they are unrepresented." The Moral of the Moray story-practitioners must seek first to remove the stay imposed by CPLR 321(c) before the application for dismissal is made.
Read decision here.
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We look forward to continuing to keep you informed about substantive issues of insurance defense law in 2010.
If you have any questions or comments about our newsletter "iNews" please contact Frank Scahill, Managing Partner, at fscahill@psnylaw.com.
Picciano & Scahill, PC
900 Merchants Concourse-Suite 310
Westbury, New York 11590
516.294.5200
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