No-Fault Case Law
Superior Med. Equip. v Hudson Ins. Co. (2007 NY Slip Op 50411(U))
February 26, 2007
The court considered the denial of a petition to vacate a master arbitrator's award regarding first-party no-fault benefits. The main issue was whether there was a rational basis for the master arbitrator's determination upholding the arbitrator's award, which denied the petitioner's claims. The court held that there was a rational basis for the determination of the master arbitrator and affirmed the denial of the petition to vacate the award. However, the court modified the order by adding a provision confirming the master arbitrator's award. The court noted that a special proceeding should terminate in a judgment, not an order.
R.J. Professional Acupuncturist, P.C. v Allstate Ins. Co. (2007 NY Slip Op 50368(U))
February 26, 2007
The main issue in the case was whether R.J. Professional Acupuncturist, P.C. was required to serve a notice of petition and petition in accordance with CPLR 402 and 403 in its special proceeding to vacate a master arbitrator's award. The court considered the fact that R.J. commenced the special proceeding to vacate the award without serving the notice of petition and petition in the manner provided for in CPLR 403(c). The court also considered that the notice of petition was served on Allstate's attorney by regular mail, which was not in accordance with the requirements of CPLR 403(c). The holding of the court was that the motion to dismiss the proceeding for improper service of process was properly granted, affirming the order without costs. Therefore, the decision was in favor of Allstate Insurance Company and the order to dismiss the proceeding was upheld.
Vista Surgical Supplies, Inc. v GEICO Ins. Co. (2007 NY Slip Op 50367(U))
February 26, 2007
The relevant facts considered by the court in Vista Surgical Supplies, Inc. v GEICO Ins. Co. involved a motion for summary judgment by the plaintiff to recover assigned first-party no-fault benefits. The plaintiff's motion was supported by an affirmation from its counsel, an affidavit by a corporate officer, and various documents. The affidavit from the corporate officer stated that the documents attached to the motion were the plaintiff's business records. The court denied the plaintiff's motion for summary judgment, as the affidavit was deemed insufficient to establish that the officer possessed personal knowledge of the plaintiff's practices and procedures. The main issue decided was whether the plaintiff made a prima facie showing of its entitlement to summary judgment, and the holding was that the plaintiff failed to do so. The order denying the plaintiff's motion for summary judgment was affirmed by the appellate court.
Grigory v State Wide Ins. Co. (2007 NY Slip Op 50366(U))
February 26, 2007
The court considered the appeal of Shtender Grigory, M.D., who sought to recover assigned first-party no-fault benefits from State Wide Ins. Co. The main issue was whether the plaintiff's motion for summary judgment was properly denied by the Civil Court of the City of New York, Kings County. The court found that the affidavit submitted in support of the plaintiff's motion was insufficient to establish the affiant's personal knowledge of the plaintiff's practices and procedures, and therefore failed to lay a foundation for the admission of the documents as business records. Consequently, the court held that the plaintiff failed to make a prima facie showing of entitlement to summary judgment, and affirmed the denial of the motion without costs.
First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co. (2007 NY Slip Op 50365(U))
February 26, 2007
The relevant facts considered by the court were that the plaintiff, an acupuncture provider, was seeking to recover first-party no-fault benefits from the defendant insurance company. The plaintiff moved for summary judgment in the case, but the motion was denied by the trial court. The main issue decided was whether the plaintiff had made a prima facie case, as the affidavit submitted by the plaintiff's employee was deemed insufficient to establish personal knowledge of the plaintiff's practices and procedures. The holding of the case was that the plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as the affidavit submitted was insufficient to establish that the employee possessed personal knowledge of the plaintiff's practices and procedures. Therefore, the denial of the plaintiff's motion for summary judgment was affirmed by the appellate court.
Great Wall Acupuncture v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 50364(U))
February 26, 2007
The main issue in this case was whether the plaintiff, Great Wall Acupuncture, had provided sufficient evidence to support its motion for summary judgment in an action to recover assigned first-party no-fault benefits. The court considered an affirmation from plaintiff's counsel, an affidavit from an employee of the plaintiff, and various documents annexed to the motion papers. The court found that the affidavit executed by plaintiff's employee was insufficient to establish personal knowledge of plaintiff's practices and procedures, which was necessary to lay a foundation for the admission of the documents as business records. As a result, the court held that the plaintiff had failed to make a prima facie showing of its entitlement to summary judgment, and affirmed the lower court's denial of the motion for summary judgment.
Vega Chiropractic, P.C. v Eveready Ins. Co. (2007 NY Slip Op 50363(U))
February 26, 2007
The court considered whether the plaintiff, Vega Chiropractic, P.C., had established a prima facie case to recover assigned first-party no-fault benefits from the defendant, Eveready Insurance Company. The main issue decided was whether the lack of authentication of the assignor's signature constituted a defect, and if the defendant had demonstrated the existence of a triable issue of fact. The holding of the case was that the lack of authentication of the assignor's signature did not constitute a defect unless there was a statutory or regulatory requirement for the same. The court also held that the defendant's proof of mailing a request for independent medical examinations (IMEs) to the assignor, and the assignor's failure to appear, warranted the denial of the plaintiff's motion for summary judgment. The order in favor of the defendant was affirmed without costs.
563 Grand Med., P.C. v State-Wide Ins. Co. (2007 NY Slip Op 50362(U))
February 26, 2007
The relevant facts involved in this case were that there was a petition to vacate a master arbitrator's award that denied the petitioner's claim for first-party no-fault benefits. The main issue decided by the court was whether there was a rational basis for the determination of the master arbitrator in upholding the arbitrator's award. The holding of the court was that there was a rational basis for the determination of the master arbitrator and the court properly denied the petition to vacate the master arbitrator's award. However, the court also mentioned that upon denying the petition, the court was required to confirm the award. The court modified the order by adding a provision confirming the master arbitrator's award and affirmed the decision without costs.
Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co. (2007 NY Slip Op 50302(U))
February 26, 2007
The court considered the motion for a directed verdict in an action to recover assigned, first party no-fault benefits. The main issue was whether defendant's expert's testimony should be precluded on the ground that the expert did not personally undertake the peer review underlying defendant's denial of the two claims at issue. The court held that it was error to preclude the expert's testimony, as he would be subject to full cross-examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report. The matter was remanded for trial, and the defendant's expert was not precluded from testifying because his opinion was based, at least in part, on his review of the assignors' medical records. Plaintiff could not challenge the reliability of the assignors' medical records and reports.
Valley Stream Med. & Rehab, P.C. v Liberty Mut. Ins. Co. (2007 NY Slip Op 27076)
February 23, 2007
The court considered the attorney's fee awards in court cases seeking payment of no-fault economic loss benefits and the disputed question of the proper formula to use for computation of a no-fault attorney's fee award. The main issue was the proper formula to use for computation of a no-fault attorney's fee award to a prevailing plaintiff's counsel in routine no-fault litigation, as well as the situations in which a plaintiff is not entitled to an attorney's fee award. The holding was that a prevailing no-fault claimant may claim an award of attorney's fees and that a single provision governs an attorney's fee award in routine court litigation for a no-fault unpaid economic loss claim, with specific calculations for the fees.