iNews from Picciano & Scahill

An insurance carrier in New York has the right to request an Examination Under Oath (EUO) of a medical provider to investigate a "Mallela" defense (State Farm v. Mallela, 4 N.Y.3d313, (2005). 11 N.Y.C.R.R. Section 65-3.16(a)(12).

In Dynamic Medical Imaging, P.C., as Assignee of Jimmy Anderson v. State Farm Fire and Casualty Company, ( 2011 NY Slip Op 21210) decided June 16, 2011, by Judge Fred Hirsch, of Nassau District Court, a subsequent action by the provider withstands a 3211(a) motion based on the defense founded on the failure of the provider to attend EUOs. The Court denied the 3211(a) application and converted the motion into one for summary judgement as the complaint pleaded in sufficient form, a cognizable right to recover first party benefits and the documentary evidence submitted on the motion was insufficient to definitively dispose of the plaintiff's action.

"The appellate courts have found the requirement of appearing for an EUO a condition precedent to coverage. Stephen Fogel Psychological, P.C. v. Progressive Casualty Ins. Co., 35 AD3d 720, 827 N.Y.S.2d 217 (2ND Dept. 2006); and LDE Medical Services, P.C. v. Encompass Ins., 29 Misc 3d 130[A], 918 N.Y.S.2d 398, 2010 NY Slip Op 51845[U] (App.Term 2nd, 11th & 13th Jud. Dists. 2010).The No-Fault Regulations treat appearance at an EUO as part of the verification process. 11 NYCRR 65-3.8(a) - where the verification demanded is an EUO, the time for a carrier to pay or deny the claim begins to run on the day the EUO was conducted; see also, 11 NYCRR 65-3.5(e) -the procedures for demanding an EUO and what must be contained in an EUO notice are in the same section of the regulations "Claims Procedures" that establishes the procedures and time limitations for obtaining verification." "An insurance carrier can deny coverage even if the party who fails to appear for the EUO is not the party submitting the claim. Crescent Radiology, PLLC v. American Transit Ins. Co., supra. - An insurer may deny a claim where the assignor fails to appear for an EUO. See also, Five Boro Psychological Services, P.C. v. Progressive Northeastern Ins. Co., 27 Misc 3d 141[A], 911 N.Y.S.2d 392, 2010 NY Slip Op 50991[U] (App.Term 2nd, 11th & 13h Jud. Dists. 2010)."

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Routine slip and fall cases crowd the Court Docket in every county in New York State. They are the "bread and butter" of a plaintiff's practice and prove costly for defendants and their insurers if not defended properly. Judges of the lower courts are reluctant to dismiss a case on a summary judgment motion when serious injuries are alleged. The proper defense of the claim must include a site visit by defense counsel, the assistance of a qualified engineer, and, a thorough examination before trial concentrating on the issue of liability.

"Do you know what caused you to fall?" is an important inquiry, however, the record on appeal must be air tight, if you expect to prevail on an appeal of the denial of Summary Judgment." To demonstrate its entitlement to summary judgment in a slip-and-fall case, a defendant must establish, prima facie, that it did not create the condition that allegedly caused the fall or have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it (see Gill v Town of N. Hempstead, 83 AD3d 777; Molloy v Waldbaum, Inc., 72 AD3d 659, 660; Musachio v Smithtown Cent. School Dist., 68 AD3d 949; Holub v Pathmark Stores, Inc., 66 AD3d 741, 742; Britto v Great Atl. & Pac. Tea Co., Inc., 21 AD3d 436)."

The Appellate Division, Second Department in the matter of Gomez v David Minkin Residence Housing. Developmnet Fund Co., Inc., decided on June 28. 2011, (2011 NY Slip Op 05665) reversed a decision denying summary judgment by Judge Solomon in Kings County, and granted a dismissal to our client. The plaintiff's engineer alleged violations of the New York City Administrative Code handrail requirements (section 27-376). Proper research and a rebuttal by our engineer found, no center handrail requirement, "Exterior stairs used as exits in lieu of interior stairs pursuant to NYC Admin. Code §§ 27-366, 27-376 need not meet the handrail requirements for interior stairs of 27-375(f) unless it is established such exterior stairs and not other exterior stairs are being used to satisfy the requirements. Taylor v. City of New York, 150 Misc. 2d 528 [1991] reversing 144 Misc. 2d 1029." The plaintiff also claimed the stairwell was wet from rain which argument was also rejected,"... the mere fact that the exposed stairway was wet from the rain is insufficient to establish a dangerous condition (see Joseph v New York City Tr. Auth., 66 AD3d at 843; King v New York City Tr. Auth., 266 AD2d 354)."

In this case the plaintiff, a 40 year old United Parcel worker, suffered a knee injury which required surgery and had been out of work for over three years due to the knee injury and a claimed disc herniation in his lower back. Jury Verdict potential was estimated between $350,000 and $600,000 in Kings County. The proper defense of this claim allowed our carrier to close the books on this case with no indemnity payment.

Read full decision here.

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The Department of Motor Vehicles in New York holds a hearing to determine whether a driver involved in a fatal accident in New York is entitled to continue his or her driving privileges. Is an adverse finding at a DMV fatality hearing admissible in a later tort action for the same incident?

While it is true that res judicata will not allow the re-litigation of claims of the same or similar gravamen (Matter of Reilly, at 29 citing Matter of Gowan v. Tully, 45 NY2d 32, 379 N.E.2d 177, 407 N.Y.S.2d 650.36), it is also true that res judicata will only apply if the two actions arise out of the identical course of dealing. Matter of Reilly, at 30. If it is determined that the two claims arise out of the identical course of dealing, the second claim or action will not be barred provided there is a showing that the "requisite elements of proof and hence evidence necessary to sustain recovery vary materially." Matter of Reilly, at 31 citing Smith v. Kirkpatrick, at 72. In as much as the proof necessary to prevail in a DMV hearing vary materially in theory and in evidence required to prevail from the state court claims, the doctrine of res judicata should not be applicable. Similarly, the doctrine of collateral estoppel does not apply if the issues being litigated in a subsequent trial are not identical to those previously argued. (People v. Bosilkofski, 134 A.D.2d 869, 521 N.Y.S.2d 601 [1987].)

"[T]he doctrine of res judicata operates to preclude the reconsideration of claims actually litigated and resolved in a prior proceeding, as well as claims for different relief against the same party which arise out of the same factual grouping or transaction, and which should have or could have been resolved in the prior proceeding (citations omitted). The doctrine of collateral estoppel bars re-litigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling. Mahler v. Campagna, 60 A.D.3d 1009, 876 N.Y.S.2d 143 (2nd Dept. 2009); City of New York v. College Point Sports Ass'n, Inc., 61 AD3d 33, 876 N.Y.S.2d 409 (2nd Dept. 2009);Luscher ex rel. Luscher v. Arrua, 21 A.D.3d 1005, 801 N.Y.S.2d 379 (2nd Dept. 2005).

"'Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based on different theories or if seeking a different remedy' (O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158)." Fitzgerald v. Hudson Nat. Golf Club, 35 A.D.3d 533, 826 N.Y.S.2d 399 (2nd Dept. 2006); see, also, East End Property Co. # 1, LLC v. Town Bd. of Town of Brookhaven, 56 A.D.3d 773, 868 N.Y.S.2d 264 (2nd Dept. 2008).

The doctrine is "'intended to reduce litigation and conserve the resources of the court and litigants and it is based upon the general notion that it is not fair to permit a party to re-litigate an issue that has already been decided against it' (Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455, 492 N.Y.S.2d 584, 482 N.E.2d 63). 'The two elements that must be satisfied to invoke the doctrine of collateral estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue' (Luscher v. Arrua, 21 A.D.3d at 1007, 801 N.Y.S.2d 379 ; see Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455, 492 N.Y.S.2d 584, 482 N.E.2d 63)." Franklin Development Co., Inc. v. Atlantic Mut. Ins., 60 A.D.3d 897, 876 N.Y.S.2d 103 (2nd Dept. 2009); Chiara v. Town of New Castle, 61 A.D.3d 915, 878 N.Y.S.2d 755 (2nd Dept. 2009); Fischer v. Sadov Realty Corp., 34 A.D.3d 632, 829 N.Y.S.2d 108 (2nd Dept. 2006); In Noble, 31 A.D.3d 643, 820 N.Y.S.2d 595 (2nd Dept. 2006); Luscher ex rel. Luscher v. Arrua, supra.

"[Once] the party invoking the doctrine discharges his or her burden in that regard, the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination." Buechel v. Bain, 97 N.Y.2d 295, 304, 766 N.E.2d 914, 740 N.Y.S.2d 252 (2001); Mahler v. Campagna, supra, 60 A.D.3d at 1011 (2nd Dept. 2009); G. Rama Constr. Enterprises, Inc. v. 80-82 Guernsey, 43 A.D.3d 863, 865, 841 N.Y.S.2d 669 (2nd Dept. 2007).

It is well settled that the doctrine of res judicata is applicable to administrative tribunals as well as to state court proceedings. Jason B. v. Novello, 44 AD3d 761, 843 N.Y.S.2d 654 (2nd Dept. 2007) citing Matter of Evans v. Monaghan, 306 NY 312, 323-324, 118 N.E.2d 452. The doctrine holds that a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law on the parties in a litigation and those in privity with them on any subsequent action. Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481, 386 N.E.2d 1328, 414 N.Y.S.2d 308 (1979). It precludes renewal of issues actually litigated and resolved in a prior proceeding. Id.; Luscher v. Arrua, 21 AD3d 1005, 801 N.Y.S.2d 379 (2nd Dept. 2005); Koether v. Generalow, 213 AD2d 379, 623 N.Y.S.2d 328 (2nd Dept. 1995); New York Site Development Corporation v. New York State Department of Environmental Conservation, 217 AD2d 699, 630 N.Y.S.2d 335 (2nd Dept. 1995). Similarly, it precludes litigation claims for different relief which arise from the same facts or transaction, which should or could have been resolved in the prior proceeding even if they weren't. Id.

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