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  • therogakreport
    [This is another group of past Rogak Report case reviews which I am adding to this user-searchable database. -- Larry Rogak] COURT OF APPEALS UPHOLDS NEW
    Message 1 of 8 , Jan 31, 2004
      [This is another group of past Rogak Report case reviews which I am
      adding to this user-searchable database. -- Larry Rogak]


      Medical Society v. Serio (decided 10/21/03)

      The Court of Appeals, affirming the decisions of Supreme Court and
      the Appellate Division, upheld the new no-fault regulations which
      went into effect on 5 April 2002, rejecting plaintiffs' contention
      that the Superintendent of Insurance lacked the authority to enact
      them. Under the new regs, claimants have 30 days to report a claim
      (but may be excused for lateness upon good cause shown) and medical
      providers have 45 days to submit bills after the date of treatment.
      Interest was changed from compound to simple; non-medical bills such
      as transportation are no longer assignable; and claimants are not
      entitled to attorneys fees if their bills violate the fee schedule.
      The issue before the Court was whether the Insurance Commissioner had
      the authority to issue these new regulations; the Court held that he


      Progressive Northeastern Insurance Co. v. Advanced Diagnostic &
      Medical Treatment P.C. et al., NYLJ 08/02/01(Supreme Court, New York
      County, GAMMERMAN, j.)

      This suit was brought by 17 insurance companies alleging large scale
      fraudulent billing schemes by a number of medical providers. The
      insurers allege that the scheme involved the illegal sale, by
      physicians, of their name and license to non-physicians, who would
      form a professional corporation in the physicians' names. The
      physician who sold his license would then become the "owner
      physician" on paper of each P.C., but agreed in advance to sell his
      P.C. to another party chosen by the real, non-physician owner. The
      non-physicans, who are not legally permitted to own a medical
      practice, or to practice medicine, would then submit fraudulent
      billing through the P.C.s, including billing for services that were
      not provided, and billing for the services of lay persons and
      chiropractors as medical persons. The insurers also alleged that the
      medical providers would forge assignments and claim forms to permit
      billing by multiple entities. The Complaint named 110 entities and
      individuals as defendants. Medical Magnetic Imaging, owned by two
      radiologists, is accused of an improper referral arrangement with
      Patchogue Medical & Diagnostic Offices in that MMI induced Patchogue
      to make MRI referrals by offering x-ray interpretation at no cost.
      Medical Health Offices of Stony Brook, Islip Medical & Health Office,
      and Suffolk Health & Medical Comprehensive Services were P.C.s
      originally formed by Ian physicians, but allegedly sold,
      respectively, to chiropractors Mark Studin (Stony Brook), Harry
      Partisky and Nancy Partisky (Islip), and Thomas Dow (Suffolk).
      Interdiciplinary Care Medical, EAP Medical Services, and American
      Comprehensive Medical Services were also formed by a physician but
      now owned by chiropractors Robert V. Simeone, Earnest Pecoraro, and
      Robert Melillo. In regard to defendant Michael Katz M.D., his license
      was suspended for 1 year on 7/7/2000; he owns defendant Ultra
      Diagnostic Radiology. The suit claims that defendant Island Wide
      Medical Services made illegal referrals to Ultra in exchange for
      ultrasound and x-ray service at no cost, and that Island Wide billed
      insurers for these services as if they had paid for them. Defendant
      Pelham Physical Medicine & Rehabilitation is actually owned by
      chiropractor Allan Perlmutter, who also owns defendant APP Healthcare
      Management. Manhattan Total Medical Health is actually owned by
      chiropractor Stephen Hoody. Both were originally incorporated by


      Ozone Park Medical Diagnostic Associates a/a/o Ken Molinari v.
      Allstate Ins Co., 180 Misc 2d 105,689 NYS2d 616 (Apellate Term, 2d
      Dept 1999)

      If a no-fault insurer fails to issue a denial within 30 days of
      receipt of the application for brnrfits, most of its defenses are
      waived. This case illustrates an obscure but very important
      exception. Plaintiff, a no-fault medical provider, took an assignment
      from the claimant and sued the insurer. Plaintiff then moved for
      summary judgment on the grouds that a denial was not issued within 30
      days. The lower court denied the MOtion on the grounds that an issue
      of fact existed as to whether plaintiff had violated §238-a of the
      Public Health Law. That law provides, in part, that "a practitioner
      authorized to order clinical laboratory services, pharmacy services,
      radiation therapy services or x-ray imaging services may not make a
      referral for such services to a health care provider...where such
      practitioner or an immediate family member... has a financial
      relationship with such health care provider..." The law also provides
      that if a practitioner makes such an illegal referral, he is liable
      and must reimburse the insurance carrier or anyone else who paid for
      those services. A "financial interest" is defined as "an ownership
      interest, investment interest or compensation arrangement." In the
      case at hand, the referring physician was the president of the
      company to which he referred the patient. Even the fact that the
      insurance carrier did not plead this as an affirmative defense in its
      Answer, the defense was not lost or waived. The Court cited Central
      General Hospital v. Chubb Group, 90 NY2d 195, where the Court of
      Appeals held that a late denial does not waive the defense of lack of
      coverage; that ruling was held to be "extended" to cases where §238-a
      is violated, because the statute provides for the forfeiture of fees
      by the physician who makes the prohibited referral.


      A.B. Medical Services PLLC v. Highlands Ins. Co., NYLJ 5/27/03 (Civil
      Court, New York County) (BILLINGS,j.)

      Plaintiff, a medical provider, moved for summary judgment in this no-
      fault benefits case. The Court held, first, that in order for a
      plaintiff to make out a prima facie case in a no-fault suit, it must
      (1) show that a policy was in effect, issued by the defendant,
      covering the treated person and the motor vehicle in which the person
      was involved; (2) that it presented claims to the insurance company
      arising from the collision; and (3) that the insurer failed to pay or
      deny the claim within 30 days. "Valid assignments of a patient's
      insurance benefits to plaintiff health care providers from their
      patient are key to plaintiff's recovery of those benefits," held the
      Court. To be entitled to direct payment of a patient's benefits,
      providers "must adhere to specific procedures": (1) a properly
      executed assignment on either the prescribed verification of
      treatment by attending physician/provider form [NF-3] or the
      prescribed no-fault assignment of benefits form [NF-AOB] which is
      contained in Appendix 13-A of 11 NYCRR section 65.15; or (2) a
      properly executed authorization to pay benefits contained on form NF-
      3. Execution of an authorization to pay benefits "shall
      not constitute or operate as a transfer of all rights from the
      eligible injured person to the provider." Although the regulations do
      not specifically say so, held the Court, "for summary judgment
      purposes, where proof of documents' signature is necessary, the
      signatures must be authenticated. Authentication of the signatures of
      a plaintiff's assignor requires an attestation by a person familiar
      with the assignor's signature identifying them as such" (citing
      Acevedo v. Audubon Mgmt., 280 AD2d 91 [1st Dept 2001]). In this case,
      the assignments were "inexplicably deficient." One assignment
      authorized payment of benefits to "Royalton Chiropractor P.C.," which
      is not the exact same name as plaintiff "Royalton Chiropractic P.C."
      Other assignments, to A.B. Medical Services PLLC and Royalton
      Chiropractor PC, "neither identify the isurer that is to pay no-fault
      benefits directly to the medical care provider, nor refer generally
      to an insurer of the assignor that covers the provider's services to
      him." And another assignment, bearing the name of plaintiff Daniel
      Kim's Acupuncture P.C. at the top, refers to the assignee as "the
      provider" but does not name Daniel Kim's Acupuncture as the
      provider. "Were the court to overlook these omissions regarding the
      insurer and the assignees, identification of the assignor executing
      the assignment is also lacking," held the Court. Plaintiffs' witness,
      David Safir, the office manager who issues their bills, does not
      adequately authenticate the assignors' signatures on the assignment
      forms in his affidavit. Safir "does not even identify 'our assignor,'
      except to refer incomprehensibly to 'each plaintiff, assignor of the
      claimant.' "Even assuming that Safir meant to say that "each
      plaintiff is the assignee of the claimant. he nowhere identifies the
      claimant," held the Court. "Were the court to overlook these further
      omissions and errors, Safir's affidavit lacks even the boilerplate
      attestation that he has personal knowledge of the affidavit's facts,
      let alone my indication of a basis for familiarity with and hence
      authentication of the assignor's signatures," stated the Court. "This
      omission is critical and may not be excused. Since the witness does
      not authenticate the executed assignments, they are not admissible
      evidence supporting summary judgment." "Each of the basic elements,"
      held the Court, "including not only an effective insurance policy,
      but effective assignments, as well as submission of the claims, is
      critical. Without admissible evidence of the assignments, plaintiffs
      have failed to make a prima facie showing that they are entitled to
      payment of their claims, regardless of defendant's opposition," held
      the Court. As a result, summary judgment was denied to the


      Sunrise Medical Imaging v. Liberty Mutual Ins. Co., NYLJ 2/15/2001,
      District Court, Nassau County (Gartner,j.)

      In the continuing war over the validity of no-fault assignments, the
      Nassau County District Court has held that such assignments are
      nonetheless valid even if the medical provider retains the right to
      collect any unpaid balance from the patient. This directly
      contradicts a position taken by the Insurance Department that such
      assignments are incomplete and invalid. Liberty Mutual argued--
      unsuccessfully-- that the medical provider lacked standing to sue
      because the assignment did not effect a complete transfer of rights.
      In 2000, Queens Civil Court Justice Duane A. Hart ruled that such
      assignments, which allow the provider to collect from the patient any
      portion of the bill which could not be collected from the insurer,
      were not true assignments and therefore were not valid. That
      decision, Rehab Medical Care v. Travelers Ins. Co., was applauded by
      the Insurance Department, which urged AAA to take the same position.
      But here, Judge Gartner ruled that the Rehab Medical Ruling
      has "thrown the no fault industry into turmoil." The Judge suggested
      that if the Insurance Department wished to invalidate such
      conditional assignments, it should do so through the regulatory


      Rombom v. Interboro Mutual Indemnity Co., NYLJ 10/19/00 (District
      Court, Nassau Co., Kluewer,j)

      Disagreeing with contrary rulings from the New York City Civil Court,
      the Nassau County District Court has held that a medical provider who
      takes an assignment of benefits from a claimant that gives the
      provider recourse against the claimant, still has standing to sue the
      no-fault insurer. The assignment that plaintiff took from the injured
      patient stated that"...if said sum in not collected, I will remain
      personally liable therefor..." Interboro initially denied the claim
      based on peer review, but at trial it asserted the defense that the
      assignment was defective, based on the prior ruling in Rehab Medical
      Care of New York v. Travelers Ins Co., 184 Misc2d 140, 706 NYS2d
      614). Rejecting this defense, the Court held that "an assignee of a
      claim has standing to seek recovery on the claim assigned..." No
      specific language is required to create an assignment, so long as
      both parties intend the claim to be assigned, and an assignment is
      valid even if made only for the purpose of brining a lawsuit
      (American Banana Co. v. Venezolana International De Aviacion SA, 67
      AD2d 613, 411 NYS2d 889). In the context of no fault claims, held the
      Court, "A continuing obligation on the part of the assignor to pay to
      the assignee what is 'not covered' by the policy...does not render
      the assignment ineffective" (Central General Hospital v. American
      Arbitration Assoc., 91 Misc.2d 516, 398 NYS2d198 [Sup.Ct., Nassau Co.
      1997]). The fact that the medical provider might seek recovery from
      the patient in the event it failed to collect from the insurer "does
      not deprive it of genuine interest in, and thus standing to bring,
      this lawsuit." But "in any event," the carrier's failure to cite the
      allegedly defective assignment in its denial of the claim constitutes
      a waiver of the "lack of standing" argument.


      Rehab Medical Care of New York P.C. a/a/o Dor Vania v. Travelers
      Insurance Co., 706 NYS2d 614 (Civil Court, Queens Co. 2000)

      Plaintiff, as the assignee of a no-fault claimant, sued to recover
      for medical services provided to the claimant. The claimant signed an
      assignment of benefits which stated that "In consideration of
      services rendered or to be rendered, I hereby assign to the provider
      of services and/or his assignees so much of my first party no fault
      automobile insurance benefits and rights, attendant thereto, as shall
      equal the full amount of the bill of such services and the provider
      or his assign may secure same in my name. I further understand that
      if said sum is not collected, I will remain personally liable
      therefor." The Court ruled, first that "It is now well settled that
      when parties purport to assign an interest, no special form of
      language is necessary to effect the assignments as long as the
      language shows the intention of the owner of the right to transfer
      it." However, "when the purported assignment is not a complete
      transfer of interests, the assignment must fail" (Central General
      Hospital v. American Arbitration Association, 91 Misc2d 516, 398
      NYS2d 198). In the case at hand, "the assignment...is not a complete
      transfer of all rights possessed by the assignor with regard to the
      recovery of benefits from the defendant/insurer." The form "indicates
      that Ms. Vania did not transfer all control and rights to direct any
      prosecution to Rehab. Indeed, because she remains liable for payment
      of her medical expenses, she retains a significant interest, possibly
      the primary interest, in the prosecution of any claim against the
      insurer and thus retains the right to arbitrate or to sue to recover
      benefits." As a general rule, the assignee is the real party in
      interest and she alone has standing to bring suit. The assignor loses
      control over the action when he makes the assignment. In this case,
      because the claimant will be required to reimburse the medical
      provider if it fails to collect the no fault benefits, "the Court
      finds that she has lost little, if any interest in the outcome of
      this action." Because of her continued interest in the outcome of
      this lawsuit, "the attempted assignment is voided." Thus, the medical
      provider "is not a proper party to bring the action" and the lawsuit
      is dismissed.


      Sehgal a/a/o Basova v. Travelers Ins. Co., NYLJ 9/3/99 (Civil Court,
      Queens County 1999)

      In this suit by a no-fault medical provider, the Court tackled the
      issue of the weight to be given to an insurance carrier's peer
      review. Plaintiff, Dr. Sehgal, took an assignment from a no-fault
      claimant, Irina Basova, for reimbursement of the costs of medical
      testing allegedly provided to the claimant. Travelers paid for the
      office visits, but denied payment of the testing bills on the grounds
      that the services were not medically necessary for the care,
      treatment or diagnosis of the claimant. In a decision rendered after
      trial, the Court held, first, that pursuant to the no fault law (11
      NYCRR §65.15) when a claim is denied by an insurance carrier , the
      claimant has three options: (1) file a complaint with the insurance
      department; (2) submit the dispute to arbitration; (3) bring a
      lawsuit to recover the amount of benefits claimed. In this case,
      plaintiff, Dr. Sehgal, testified that the testing he performed was
      medically necessary. However, found the Court, his conclusions were
      based solely upon the plaintiff's subjective complaints and were not
      supported by any objective findings. Travelers conducted a peer
      review in which their expert neurologist testified that "in my
      opinion, [the claimant], according to the history and findings of Dr.
      Sehgal, really did not sustain [a] head injury during this accident.
      Moreover, there is not even a suggestion of cerebral or brain stem
      injury or dysfunction of an objective nature causally related to this
      accident. Hence, I regard the performance of the EEG and BAER in this
      case as unwarranted and without proper indication." Travelers also
      introduced the testimony of an IME physician and a radiologist, both
      of whom found no objective evidence of spinal pathology or
      disability. The issue, stated the Court, is whether a medical
      provider is entitled to payment for extensive testing where all of
      the results are negative. The Court held that there was no showing
      that the claimant would be subject to any medical danger if the tests
      were not performed, because there were no objective findings to
      support all the testing. The carrier's IME and peer review, which
      were negative, shirfed the burden to the claimant-provider to show
      the necessity of the testing. Significantly, the Court held that the
      provider "failed to establish that any delay in taking the tests
      would have been life-threatening." As a result, the Court found for
      Travelers and dismissed the Complaint.


      Herman a/a/o Pellegrino v. State Farm Insurance Co., 167
      Misc2d 136, 639 NYS2d 646 (Civil Court, Queens Co. 1995)

      Plaintiff, an attorney, sued to recover unpaid no-fault benefits for
      the claimant-assignor, and to recover statutory no-fault attorney
      fees for himself. The Court held, first, that while the no-fault
      statute provides for attorney's fees for a successful claimant, that
      provision was "enacted for the sole benefit of the claimant," and
      that "no independent right would seem to reside in the attorney to
      collect that fee, apart and independent of the claimant." The law
      firm therefore had no standing to sue for no-fault attorney fees in
      its own name. And because the law firm was the only party residing in
      the City of New York, the Civil Court lacked jurisdiction over the
      other claims, and the case was dismissed.


      Regency Medical Supplies Inc. a/a/o Lamar Wilson v. Lumbermens Mutual
      Cas. Co., AAA case no. 17 991 28709 01 (Melissa H. Melis, Arbitrator)

      We won a nice little victory here. The applicant medical supply
      company sold the claimant a cervical pillow, a custom fitted lumbar
      sacral orthosis, a cervical collar, a TENS unit and a thermophore.
      The assignment of benefits form read as follows: "I _____ request the
      payment to be paid directly to REGENCY MEDICAL SUPPLIES INC. for
      orthopedic and medical appliances rendered to me on _____ and for any
      future services. I also authorize my attorney to pay REGENCY MEDICAL
      SUPPLIES INC. as soon as possible. I the undersigned recognize that
      it is also my responsibility to pay such charges regardless of the
      disposition of the claim. "In our written submissions, we cited a
      peer review doctor who found these supplies to be medically
      unnnecessary, and we also challenged the provider's standing to bring
      this arbitration based on the wording of the assignment. The
      Arbitrator held, "The authorization for payment signed by Mr. Wilson
      quoted above contains language that secures both a lien against any
      third party proceeds that Mr. Wilson may receive, and secures a
      guaranty of personal liability by Mr. Wilson. This is clearly not an
      assignment of benefits...Establishing a prima faci case begins with
      Applicant demonstrating the requisite existence of standing to
      arbitrate. In order to confer standing up Applicant, Assignor must
      execute a document assigning all first party no fault automobile
      insurance benefits and the rights attendant thereto. In the absence
      of such an agreement, Applicant cannot, on Assignor's behalf,
      institute any action for recovery of benefits due Assignor... As a
      matter of law and public policy, a medical provider who takes an
      assignment of No-Fault benefits may not, in addition thereto, secure
      for himself added avenues for payment. Futhermore, one can hardly
      infer the Assignor intended to assign away his rights, given the fact
      that he retained personal liability. As such, I find that the
      authorization for payment clearly is incapable of conferring upon the
      Applicant the requisite standing to arbitrate..." The claim was
      denied, without prejudice for the claimant himself to arbitrate


      Gateway Medical PC a/a/o Clark v. Omni Insurance Group, AAA case no.
      17 991 44739 01 (Stephen Hochberg, Arbitrator)

      We have won a terrific decision in a no-fault arbitration matter
      which, I think, is one of first impression. The claim was for various
      diagnostic tests (EMG/NCV) of the upper limbs. Our client Omni
      Insurance denied the bills for lack of medical necessity, based on a
      peer review. The Arbitrator held that "The threshold, and in this
      matter dispositive, issue is the failure of the Applicant to proffer
      signed bills. Applicant proffered a HECFA form with the box
      for 'signature of physician or supplier including degrees or
      credentials having only the following computer generated typed
      110900.' These expressions do not constitute a signature... In fact,
      no name of an individual appears on the form, in any formate, in the
      capacity of representing the Applicant... As to this personal
      corporation Applicant no individual is, as they say in the
      vernacular, stepping up to the plate and taking responsibility for
      the accuracy and validity of the statements contained in the HECFA.
      The signature requirement is no more technicality; it is the
      quintessential essence of the HECFA. It serves as a deterrence to
      overbilling, duplicative billing, and fraud. A medically-
      credentialed individual puts his or her imprimatur, by virtue of his
      or her signature, on the statements put forwardand in doing so takes
      responsibility for them." The Applicant's attorney did request an
      adjournment at the hearing, after the arbitrator indicated that this
      issue was dispositive, but the Arbitrator refused to grant it on the
      grounds that it appeared the the signed documents did not exist and
      that the attorney wanted "an additional opportunity to create such a
      document." The Arbitrator stated that a signed bill is so crucial to
      a no-fault claim that "a claim cannot be initiated and/or maintained
      without it, at any stage of the no-fault process and thus no cure of
      this defect can occur by the post-facto creation of such a document."
      The claim was denied in its entirety.
    • therogakreport
      [Note to readers: This is another installment of past Rogak Reports which you can now search by keyword. -- Larry Rogak] SIGNING ONE LOG-IN SHEET FOR ALL
      Message 2 of 8 , Feb 9, 2004
        [Note to readers: This is another installment of past Rogak Reports
        which you can now search by keyword. -- Larry Rogak]


        Concept Chiropractic PC a/a/o Bernardo Chilindron v. Kemper/
        Lumbermens Mutual Ins. Co., AAA case no. 17 991 17922 02 (JOSEPH
        HAUSMAN, Arbitrator)

        Kemper's timely denial of the claimant's no-fault bills in this arb
        was based on the opinion of the claims examiner, without a peer
        review, on the basis of "concurrent care." Chiropractic, neurologist,
        physical therapy and acupuncture bills were at issue. In this
        case, "since evidence has been produced to show that the
        acupuncturist and chiropractor were paid for their services, during
        the same period of time that therapy services were rendered, then the
        therapy treatment becomes concurrent care and not reimbursable. Only
        one provider is to be paid and that was the acupuncturist and/or the
        chiropractor." The arbitrator also held that "bills alone, without a
        comprehensive medical report by the provider, do not magically confer
        a prima facie case on behalf of the Applicant." Further, "when the
        patient logs in on the same sheet for all providers, this leads to
        fraud." The arbitrator expressed incredulity that "a 26 year old male
        would go to three different providers on each visit for an extended
        period of time. More likely, he signed in for all three and saw only
        one." As a result, the claim was denied in its entirety.


        Jian Acupuncture Service a/a/o Bernardo Chilindron v.
        Kemper/Lumbermens Mutual Cas Co., AAA case no. 17 991 1724 02 (Joseph
        Hausman, Atbitrator)

        This arbitration was related to the one reported above. Once again,
        the arbitrator stated that bills alone, without a comprehensive
        medical report, "do not magically confer a prima facie case." "There
        were no details of office visits, the nature of the treatment on each
        visit, the visit's duration, the prognosis "or even it treatment was
        beneficial." Also, "no evidence was submitted to show that treatment
        being provided were for different portions of the body or for
        different conditions." Kemper had paid the first bills submitted to
        it: acupuncture and chiropractic. "The specialty which is most
        relevant to the diagnosis should be the one which received payment."
        Here, "there is no substantial evidence before me to show that one of
        the modalities was more appropriate than any other." Therefore, "the
        conservative treatment of massage therapy would be as appropriate as
        the chiropractic or acupuncture." The claim was denied in its


        Flex Massage PC a/a/o Bernardo Chilindron v. Kemper/Lumbermens Mutual
        Cas Co., AAA case no. 17 991 17923 02 (Joseph Hausman, Arbitrator)

        The patient was receiving acupuncture, physical therapy, chiropractic
        and neurological treatment on overlapping dates. Log-in sheets were
        signed for all modalities in the same dates. "Since evidence has been
        produced to show that the acupuncturist and chiropractor were paid
        for their services during the same period of time that therapy
        services were rendered, then the therapy treatment becomes concurrent
        care not reimbursable. Only one provider is to be paid and that was
        the acupuncturist and/or the chiropractor." The claim was denied in
        its entirety.


        Flatlands Acupuncture, P.C. a/a/o Kitty Aitken v. Lumbermens Mutual
        Cas. Co., AAA case no. 17 991 76589 (Lisa M. Capruso, Arbitrator)

        This medical provider sought reimbursement for acupuncture treatments
        rendered from 4/2/99 to 4/12/99. Lumbermans denied the claim on the
        grounds that the acupuncture was concurrent with the chiropractic and
        physical therapy treatments. Arbitrator Capruso held that "the dates
        of services were exactly the same for the chiropractic, physical
        therapy and acupuncture treatments. Applicant cannot establish the
        medical necessity of the acupuncture treatments where the Assignor is
        also receiving physical therapy and chiropractic treatments. Since
        the medical necessity of the acupuncture cannot be established, the
        Applicant is not entitled to reimbursement..."


        Backcare Chiropractic, P.C. a/a/o Theron Marbury v. Lumbermens Mutual
        Cas. Co., AAA case no. 17 991 75818 1 (Harry Peltz, Arbitrator)

        The assignor went for physical therapy, chiropractic and acupuncture
        from 7/26/99 to 8/25/99. "the dates of treatment coincide in almost
        all instances." held Arbitrator Peltz. "It is also noted that the
        place of treatment for each of these modalities was 2111 White Plains
        Road in the Bronx..." The Assignor complained of neck and low back
        pain. "The treatment plan was for conservative chiropractic care four
        to five times a week for four weeks..." The arbitrator noted that the
        chiropractor, acupunturist and physical therapist all had the same
        diagnosis-cervical and lumbar strain. "No evidence has been submitted
        to show that the treatments being provided were for different
        portions of the body or for different conditions." Therefore "it is
        evident that these three modalities represented concurrent care. In
        such situations, the specialty that is most relevant to the diagnosis
        should be the one which receives payment." In this case,
        however, "there is no substantial evidence before me to show that one
        of the modalities involved was more appropriate than the other." In
        light of the fact that all three providers were in the same office at
        the same address, and none of the treatments was more relevant than
        the others, the Arbitrator resolved the issue on a "first-come, first
        served" basis: the physical therapy bills had arrived at Lumbermens
        first, and were paid. Therefore the other two modalities were denied
        as concurrent.


        Matter of Empire Ins. Co. (Hillard), NYLJ 4/18/00 (Supreme Court,
        Westchester Co., Lefkowitz, J.)

        In this case of first impression, the Supreme Court, Westchester Co.,
        has ruled that no-fault benefits cover the occupants of a car hit by
        a falling tree, so that the insureds were entitled to arbitrate their
        claims. The insured, Ralph Hilliard, and his wife were in their car,
        with Mr. Hillard driving, when their car was struck by a falling tree
        in June 1998. Mr Hillard sustained fatal injuries and Mrs. Hillard
        was injured but survived. Empire Insurance Co. argued that under no-
        fault principles, the automobile or its operation must produce the
        injury. The Court ruled that because the Hillards were operating
        their car at the time of the accident, the operation of the vehicle
        was a proximate cause of the accident--and not the falling tree. If
        the arbitrators determine that Empire must pay the Hilliards' claims,
        there may be a remedy against the owner of the tree if there was
        notice that it was defective, held the Court.

        Comment: I agree with the Court. If the insureds had lost control of
        their car and hit a tree, they would be eligible for no-fault
        benefits. So why should they be ineligible just because the tree hit
        them? As for the possible subrogation claim against the owner of the
        tree: there is normally no subrogation right for basic economic loss
        (i.e., the first $50,000 in no-fault benefits) paid out under no-
        fault policy in a claim involving only a private passenger vehicle.
        But there are exceptions to that rule, and one of them is where the
        tortfeasor is not a "covered person" under the no-fault law. In this
        case, the tree owner is not a covered person because his negligence,
        if any, does not arise out of the ownership or operation of a motor
        vehicle, and so he is subject to no-fault subrogation.


        Canfield v. Beach and Elrac Inc., 761 NYS2d 71 (2d Dept 2003)

        This BI action arose out of a collision between a vehicle owned by
        the Federal Government, operated by plaintiff, and a vehicle operated
        by defendant Beach and owned by defendant Elrac. Beach's vehicle
        struck Canfield's vehicle in the rear. Plaintiff moved to dismiss
        Elrac's affirmative defenses based on the no-fault threshold. The
        Appellate Division, held that "Although the United States is exempted
        from furnishing security under the New York Motor Vehicle Financial
        Security Act, it is subject to the provisions of the no-fault law...
        As a Federal employee, the plaintiff's exclusive remedy as against
        her employer, the United States, for work-related injuries is the
        receipt of benefits afforded by the Federal Employees' Compensation
        Act [FECA]... As the recipient of full FECA benefits, the plaintiff
        has suffered no economic loss. Thus, FECA benefits are the equivalent
        of no-fault benefits." Although FECA benefits must be repaid to the
        goverenment out of any tort revovery, this fact does not bar the
        application of the no-fault threshold to Federal employees. Thus,
        plaintiff can only recover for economic loss exceeding $50,000 and
        must prove that her injuries meet the no-fault threshold.


        One of our clients posed this qustion to us: two vehicles collide at
        an intersection. The asverse vehicle was making a left turn without
        yielding to the insured vehicle. After the collision, the adverse
        vehicle strikes the pedestrian, who was in a crosswalk, and then
        flees the scene. Is the pedestrian entitled to collect no-fault
        benefits from the indsured vehicle, which did not strike him? We say
        no. The basic premise is that in order for a person to be eligible
        for no-fault benefits from a given vehicle's insurer, that vehicle
        must be the proximate cause of the claimant's injuries. This basic
        principle was recently reiterated by the Court of Appeals in Walton
        v. Lumbermen's Mutual Cas. Co., 88 NY2d 211. In Walton, the plaintiff
        was injured while unloading a truck at a supermarket loading dock
        when a device called a "levelator," which raised and lowered to allow
        trucks to unload onto the dock, tipped over and injured the
        plaintiff. The top court held that "where, as here, the plaintiff's
        injury was caused by an instrumentality other than the insured
        vehicle, liability for the losses sustained are more properly
        addressed outside the area of no-fault motor vehicle insurance."
        Thus, in order to qualify for no-fault benefits from a given
        vehicle's insurer, that vehicle must be the cause of the claimant's
        injury. Other cases illustrate the point in specific circumstances.
        In Nassau Ins. Co. v. Jiminez, 116 Misc2d 908 (Sup. Ct. Queens Co.
        1982), the claimant went into a store to escape the sidewalk area
        where the insured vehicle had struck and downed a lamppost, leaving
        live electrical wires exposed. Inside the store, she tripped over a
        counter. The arbitrator had found that there was a break in the chain
        of causation between the vehicular accident and the claimant's
        injury. The Master Arbitrator rejected this finding. But the Court
        reinstated the arbitrator's finding, holding that the motor vehicle
        at issue must be "the actual instrumentality which produces the
        injuries." Another illustration particularly relevant to the case at
        hand comes from Reliance Ins. Co. v. O'Neil, 105 Misc2d 1018, 430
        NYS2d 239 (Sup Ct, NY Co.1980). The insured car was legally parked at
        the curb. Another car went out of control, struck the parked car, and
        caused the parked car to jump onto the sidewalk, striking the
        claimant. In denying no-fault benefits from the insurer of the parked
        car, the Court held that "the force of the other car striking the
        petitioner's vehicle was the cause of the accident," and not the "use
        or operation" of the parked vehicle. In the case at hand, there was
        no contact between the insured vehicle and the claimant. Nor is there
        any evidence that the insured vehicle set into motion any forces
        which led to the other striking the plaintiff, as the other vehicle
        was in the process of making a left turn at the time of the vehicle-
        to-vehicle collision. The other vehicle, after the collision,
        continued under its own power, struck the claimant, and then fled the
        scene. The absence of contract by the insured vehicle and the fact
        that the Proximate cause of the claimant's injuries was the operation
        of the adverse vehicle, lead to the definite conclusion that the
        claimant is not entitled nor eligible for no fault benefits from the
        insured vehicle.


        Benetti v. Integon National Insurance Company, 703 NYS2d 217 (2d Dept

        Integon's no-fault department found itself in a good news/bad news
        situation in this case. The good news was that they got the Appellate
        Division to hold that an insurer's untimely denial of a no-fault
        claim can still be upheld if the carrier can show, in admissible
        form, that the claimant's injuries were not the result of an auto
        accident. The bad news is that Integon "failed to proffer evidence in
        admissible form" to support that contention, so they don't get the
        benefit of the rule. A no fault claim for which no additional
        verification is sought in a timely manner must be paid or denied
        within 30 days or it is overdue, commencing the accrual of interest
        and attorney's fees. An exception to this rule exists for a claim of
        no coverage-- if the carrier can prove it. But, in this particular
        case, the Court found that Integon's claim, "in reality," was that
        the plaintiff's treatment was "medically excessive"-- a defense which
        is waived if the denial is not made in a timely fashion. Supreme
        Court, Dutchess Co., granted summary judgment to the insured, and the
        Appellate Division affirmed.


        Westchester Co. Med. Center v. N.Y. Central Mutual Fire Ins. Co., 262
        AD2d 553, 692 NYS2d 665 (2d Dept 1999)

        Plaintiff hospital, as assignee of two no fault claimants, commenced
        this action against defendant no fault insurer for benefits.
        Planitiff alleged that defendant had not issued a timely disclaimer
        and that benefits were therefore "overdue" within the meaning of the
        no fault law --thus precluding the carrier from defending the claims.
        The Appellate Division held that an isurance company has 30 days from
        the receipt of a completed application to pay or deny a claim for no
        fault benefits (11 NYCRR 65.15[g]). This time period may be extended
        by a timely demand by the insurer for further verification of a
        claim. Such demands must be made within 10 days of receipt of a
        completed application. If the demanded verification is not received
        within 30 days, the insurer must follow up with a letter within 10
        days of the insured's failure to respond. A claim need not be paid or
        denied until all demanded verification is provided. In this lawsuit,
        plaintiff's claim was received by defendant on 4/28/97. A demand for
        verification was timely made on 5/1/97. When the verification was not
        supplied, a follow up letter was sent on 6/13/97. Plaintiff never
        responded. Because of this, "the 30-day period in which the defendant
        had to pay or deny the...claim never commenced, and therefore, the
        defendant's denial of the claim on June 19, 1997 was not umtimely."
        In addition, the basis for the disclaimer was that the medical bills
        for which payment was sought did not concern injuries arising from an
        auto accident covered by the policy. A disclaimer on that basis is
        always valid, even if untimely. As a result, summary judgment for
        plaintiff was reversed.


        Medical Expertise PC a/a/o Irina Moukha V. Trumbull Ins., NYLJ
        5/28/03 (Civil Court, Queens County)(SIEGAL,j.)

        Plaintiff sought reimbursement for psychological services allegedly
        rendered to the injured person as a result of a motor vehicle
        accident which occurred on 8/7/2000. Plaintiff submitted an
        assignment and authorization form, test results and bills, letter of
        medical necessity, and self referral consent form to defendant.
        Defendant denied the claim on the basis of a peer review. At trial in
        Civil Court, both the plaintiff's provider and the peer review doctor
        testified. The peer review doctor never interviewed the assignor, but
        rendered his decision on the basis that the psycho-diagnostic tests
        were used prematurely. After plaintiff established its prima facie
        case, defendant sought to introduce the NF-10 from plaintiff's file
        into evidence. Plaintiff objected, but the Court permitted its
        introduction. The issue, stated the court, is whether a proper
        foundation may be laid for introduction of a document from another
        party's business file and witness. CPLR 4518(a) is the "business
        records" exception to the hearsay rule. To meet the exception, the
        record must have been made in the regular course of business; the
        record must have been pursuant to the established routines of the
        business for making such records; and the record must have been made
        at the time of the transaction or within a reasonable time
        thereafter. Such business records are admissible even though the
        person who prepared it is unavailable to testify to the transcation.
        Regarding the admission of business records of someone other than the
        one seeking to introduce it, it is not enough to show that the papers
        were received by the other entity and merely filed away. It must be
        shown that they were "fully incorporated into the recipient's records
        made in the regular course of business. In the case at hand, the
        document (NF-10) was generated by defendant insurance company in
        order to deny benefits to the plaintiff's assignor. Defendant, who
        presumably had lost its own copy, sought to introduce plaintiff's
        copy of the NF-10. At trial, testimony showed that the plaintiff had
        knowledge of the business practices of defendant by virture of
        plaintiff's own business (a psychologist who provides services to no-
        fault claimants). Plainitff had submitted many claims to defendant
        and was aware of defendant's procedures. Plaintiff maintained a copy
        of the NF-10 in her files, and "most significantly...not only
        retained and maintained the NF-10 in her file but relied upon the
        document and acted upon the denial by filing this lawsuit." The Court
        also noted that in her Bill of Particulars, plaintiff admitted
        receiving the NF-10 and included a copy in her discovery responses.
        Therefore defendant met the requirements of the business records
        exception to the hearsay rule for introducing another party's


        Citywide Social Work & Psych Service v. Lumbermens Mutual Cas. Co.,
        Civil Court, Kings County

        We have won a major victory--and set a new legal precedent--over the
        biggest plaintiff's no-fault firm, Israel & Israel, on an issue that
        had been a major source of vexation to our clients. The issue is
        this: how to get the carrier's NF-10 into evidence. Heretofore, we
        have engaged in an elaborate game with Israel & Israel: they would
        refuse to stipulate to the admission of the NF-10 so as to put
        carriers through the inconvenience of sending an adjuster to court.
        For a carrier like Lumbermens, located in Syracuse, this has been
        more than an annoyance: it has been a major hassle, involving
        airplane tickets and hotels for overnight stays. But Israel's
        apparent game was merely to make the adjuster show up: once Israel
        saw our adjuster appear, they would stipulate to admit the NF-10. We
        had our own counter-measures to use against them, but it remained a
        chess game. So once again, we put our creative talents to work and
        came up with a strategy which we hoped could get the NF-10 admitted
        without the presence of an adjuster--something which has never been
        done before. I won't give away the strategy (just like the Coca-Cola
        company doesn't give away its formula), but it worked. The Court
        admitted our NF-10. Now Israel can't play it's game, and our clients'
        adjusters dont have to appear to get the NF-10 admitted. And at the
        same time, we can still use the counter-strategies we have been
        employing against Israel. This is a major strategic victory, the
        importance of which cannot be overstated.


        Damadian MRI in Canarsie v. Countrywide Ins Co., NYLJ 2/25/03 (Civil
        Court, Queens County)(AGATE,j.)

        Plaintiff submitted its claim forms to defendant on 6 June 2002,
        which was received by defendant on 11 June 2002. Defendant generated
        a denial dated 11 July 2002, which was mailed on 17 July 2002.
        Plaintiff moved for summary judgment on the grounds that the denial
        was untimely, having been mailed more than 30 days after defendant's
        receipt of the bills; defendant asserted that the denial was "issued"
        within 30 days and is therefore timely. Finding this to be a case of
        first impression, the Court held that "issuing" a denial
        and "mailing" it are two distinct acts; for a denial to be timely, it
        must not only be printed out but mailed out, within 30 days.
        Otherwise, held the Court, the 30-day time limit would be
        rendered "meaningless" and insurers could mail backdated denials.
        Summary judgment was granted to plaintiff, as the 17 July mailing
        made the denial untimely.


        Continental Medical, PC a/a/o Jose Montalvo v. Allstate Ins Co., NYLJ
        3/3/03, Civil Court, Bronx County (GUZMAN,j.)

        This no-fault suit was commenced by a medical provider for benefits
        due to assignor Montalvo. Defendant insurer made a partial payment on
        the bills, and denied the rest in an NF-10 which stated that the feed
        charged were not in accordance with the fee schedule. But in this
        lawsuit, defendant moved for summary judgment on the grounds that the
        assignment from the patient to the plaintiff was invalid, and thus
        plaintiff had no standing to sue. The Court noted that
        Allstate "never denied the claim based upon an invalid assignment but
        rather based upon noncompliance with the NY workers Compensation
        guidelines..." It is "well settled that an insurer must state with
        specificity the reason or reasons for denial of claim on the denial
        form... The notice of disclaimer must promptly apprise the claimant
        with a high degree of specificity of the ground or grounds on which
        the disclaimer is predicted. Absent such specific notice, a claimant
        might have difficulty assessing whether the isurer will be able to
        disclaim successfully. This uncertainty could prejudice the
        claimant's ability to ultimately obtain recovery." Because Allstate
        failed to raise the issue of the validity of the assignment in its
        denial form, it waives that defense.


        Bridges v. Allstate Ins. Co., NYLJ 10/31/02 (City Court, New Rochelle)

        On 9/04/94, plaintiff was involved in an auto accident with Melvin.
        On 9/15/02, plaintiff's attorney wrote to Melvin asking her to
        forward the letter to her insurance carrier. On 9/29/94, plaintiff's
        attorney wrote to Royal Insurance asking her to forward the letter to
        her insurance carrier. On 10/03/94, Royal wrote back to plaintiff's
        attorney denying that Melvin was insured by it. Aside from writting
        to Royal, plaintiff's attorney did nothing else to learn who Melvin's
        insurer was, in fact, it was Allstate. Some 14 months after the
        accident, in early January 1996, plaintiff's attorney somehow learned
        that Allstate was Melvin's insurer, and he served a Summons and
        Complaint on Allstate for no-fault benefits. This was Allstate's
        first notice of the accident. On 3/11/96, Allstate sent a denial of
        claim form to plaintiff, based on late notice. Plaintiff now moved
        for summary judgment on the basis of the late denial. The Court noted
        that a claimant had 90 days (now amended to 30) to notify Allstate of
        the claim, and the plaintiff's first notice, sent 14 months post-
        accident was late. However, held the Court, a no-fault carrier has 30
        days after receipt of proof of claim to pay or deny the claim. Where
        the denial is late, the insurer must pay the claim even if notice of
        the claim was late. In view of "the clear public policy objectives"
        in having no-fault claims attended to promptly by
        insurers, "Allstate's denial of no-fault benefits cannnot stand. A
        significant number of cases have held that prompt notice of the
        disclaimer must be given even where an injured claimant has, in the
        first instance, failed to provide the insurer with timely notice of
        the accident..." In this case, Allstate "evidently became aware" that
        plaintiff's notice of the claim was late "as soon as it received the
        Summons and Complaint at the begining of January 1996." Plaintiff was
        granted summary judgment and the case was set down for inquest on


        Bronx Medical Services, P.C. ex rel. Rivera v. Lumbermens Mutual Cas.
        Co., (App. Term., 1st Dept 2003) 2003 WL 21402045

        When we won this case on summary judgment in the Civil Court, we were
        pretty sure our win would not survive an appeal. Unfortunately, we
        were right. The issue was this: under the "old" no-fault regulations,
        i.e., up to April 5, 2002, is a claimant's failure to show up for two
        scheduled EUO's a valid basis for disclaimer? Oh, sure, we know that
        it has been done, and often gone unchallenged, but there was a little
        problem that loomed in the background: there was no real authority
        for that postition. As in many instances under the no-fault law,
        insurance carriers had been relying the custom and practice of the
        industry because the statutes amd regulations were silent on the
        matter. And insurers relied, understandably, on the EUO clause in the
        liability section of the policy. But neither the no-fault endorsement
        nor any regulations specifically made EUO attendance a requirement
        for benefits prior to April 2002. So when the instant case came up--a
        suit for benefits after a denial based on 2 EUO no-shows--we gave it
        our best shot. We moved for summary judgment, and Civil Court, Bronx
        County, granted it. Then plaintiff took an appeal. Here is what the
        Appellate Term said: "The sole basis offered by defendant for its
        denial of no-fault coverage--Rivera's failure to appear at two
        examinations under oath scheduled in July 2000--was improper.
        Although governing Insurance Law regulations (see, 11 NYCRR former
        65.12) require an injured person seeking recovery of no-fault
        benefits to submit to medical examination(s), a requirement that
        Rivera undisputedly met here, the applicable regulations contain no
        comparable provision requiring attendance at an examination under
        oath. Defendant's reliance on the examination under oath provisions
        contained in the liability portion of the insurance policy issued to
        the owner of the vehicle in which plaintiff's assignor was riding, is
        misplaced. The no-fault protection created by the statute and
        implementing regulations 'cannot be qualified by the inapplicable
        conditions and exclusions of the liability portion of the policy.'
        Nor is the defense aided by the subsequent revision of the no-fault
        regulations, which now require claimants to submit to examinations
        under oath 'as may reasonably be required.' The revised regulations
        cannot be applied retroactively to cover plaintiff's September 2000
        no-fault claim, a conclusion supported by relevant case law and
        consistent with the Insurance Depatment's own interpretation of
        revised Regulation 68 as articulated in the agency's 'Circular Letter
        No. 9 of 2002,' an interpretation entitled to great deference. Since
        the stated basis for defendant's denial of no-fault coverage was
        improper, and in the absence of any disputed issues of fact,
        plaintiff is entitled to summary judgment on the complaint." The case
        was remanded back to Civil Court for assessment of attorney's fees.
        Therefore, at least in the First Department (Manhattan and Bronx),
        for claims brought under polices issued prior to 5 April 2002, the
        rule is: EUO no-shows are not a valid basis for denials. (NOTE: This
        decision was upheld on appeal).


        Celtic Medical PC a/a/o Judith Rattan v. Progressive Ins. Co., 755
        NYS2d 209 (District Court, Nassau Co. 2002)

        This was a lawsuit brought by a medical provider to collect no-fault
        benefits. At some point within a month or two of the accident,
        defendant-insurer became aware of it and sent an IME letter to the
        claimant, as well as an EUO letter. The claimant did not attend
        either the IME or the EUO. Plaintiff rendered treatment to the
        claimant and received an assignment, then filed a claim with
        Progressive, which issued timely denials based on the EUO-and IME- no-
        shows. Plaintiff then commenced this litigation, and Progressive
        moved for summary judgment. The Court stated, first, that "there does
        not seem to be a great deal of pertinent case law on the precise
        issue submitted to the Court, namely whether a failure of the insured
        to submit to such examinations can constitute a good defense... to a
        no-fault claim." Although Progressive submitted "a number of
        arbitration decisions" and an opinion from the Insurance Department,
        the only court decision on the issue was a Second Department case
        from 1994 which upheld an arbitrator's decision in favor of the
        insurer on the grounds that "the award had a rational basis."
        Although "rational basis" is the very standard by which arbitration
        decisions are judged, this Court said that the 2d Department decision
        was "hardly a ringing endorsement" of Progressive's position. "The
        real question at issue on this motion are whether it is reasonable
        for an insurer to demand examinations prior to the submission of a no-
        fault claim" in light of the purpose of the no-fault law. Medical
        treatment for no-fault claimants "would rapidly become unavailable or
        very difficult to administer if medical providers must be assured, on
        pain of a summary judgment dismissal of their assigned claim, that
        their patients will cooperate thereafter with their insurers' demands
        for examinations." A decision for Progressive here "would have just
        such a chiling effect. "In addition, "there is also no record before
        the Court to indicate why it is even necessary for insurers to
        schedule examinations so quickly after an accident. Therefore, "it
        cannot be held, as a matter of law, that the defendant's demands for
        medical examinations and examinations under oath were reasonable
        under the facts of this case or that the plaintiff's assignor
        breached the policy condiditions even if the demands were
        reasonable." The reasonableness must be determined by a jury, not by
        the court on summary judgment.

        No Fault Arbitrator Gives The Thumb To Claimant Who Failed to Show
        for IME, EUO

        Metro Medical Diagnostic a/a/o Emmanuel Belamy and Lumbermens Mutual
        Casualty Co., AAA Case No. 17 990 29205 00 (Regina A. Kurz,

        This medical provider sought $1791.71 for cervical and lumbar MRI
        studies following an auto accident on 5/20/98. The MRIs were
        performed on 5/27/98 and 7/17/98. Lumbermens denied benefits on
        1/20/99 on the grounds that the claimant failed to appear for 4 IME
        appointments and never showed for an EUO. We showed the arbitrator
        that there had been a prior arbitration involving this same "injured
        party" who had been denied benefits based on a similar failure to
        show for IME's and EUO's. The arbitrator ruled that "The evidence
        submitted...Persuades this Arbitrator that the failure to provide
        proper verification of the claim rendered the policy a nullity ab
        inito. ...The claim is denied in its entirety."


        New York Hospital Medical Center of Queens a/a/o Cara Palagonia et
        al. v. Kemper Auto & Home Insurance Company (unreported), Supreme
        Court, Nassau County (DUNNE,j.)

        In this case, the plaintiffs were two hospitals. After paying out the
        full $50,000 in no-fault benefits to the assignor, plaintiff sent in
        an additional $17,5000 in hospital bills. Kemper neither paid nor
        denied these additionalo bills. Plaintiff's attorney moved for
        summary judgment; we crossed-moved for summary judgment based on the
        prior exhaustion of benefits. The Court held that "Where a carrier
        has paid the full monetary limit set forth in the policy, its duties
        under the contract of insurane cease." Further, "A failure to
        disclaim coverage does not create coverage which the policy was not
        written to provide." Thus, "plaintiff has failed to establish its
        burden of proof..." and so "the plaintiff's complaint is dismissed."

        Comment: No prior court decision has stated succinctly that a no-
        fault carrier can safely ignore medical bills after benefits are
        exhausted. Tending to the contrary, a number of decisions have held
        that if a denial is late, a no-fault carrier can be bound to pay
        benefits even if a claim is fraudulent or the treatment was
        unneccessary. Once again, we continue to blaze trails while other no-
        fault defense firms simply stumble along in our dust.


        Gelberg v. State Farm Ins Co., NYLJ 4/15/02 (Civil Court, Kings
        County 2002)(YELLEN,j.)

        This lawsuit was prompted by State Farm's denial of $846 in medical
        benefits under her no-fault policy. After winning a jury verdict for
        $875.92, plaintiff moved for an Order granting her $3000 in expert
        witness fees and $1343.75 in appellate printing costs (State Farm had
        appealed the denial of a Motion) as well as $10,000 in attorney's
        fees and over $6400 in interest. The Court held that "this was not a
        simple negligence action. Plaintiff... was forced to sue her
        insurance company to recover benefits that she was clearly entitled
        to and which a jury found were necessary and appropriate under the
        circumstances. Plaintiff was unable to establish her entitlement to
        payment without the aid of an expert witness and such was also
        necessary for the jury to determine the medical necessity of the
        treatment in question." Though expert witness fees are ordinarily not
        recoverable in litigation, they can be recovered in "extraordinary
        cases." Yet, in denying the demand for attorney's fees, the court
        stated that "there was nothing unique about this case and no novel
        legal issues were implicated as to require extraordinary skills or
        services on the part of the plaintiff's attorney." So plaintiff gets
        just the $850 statutory maximum attorney's fees. However, plaintiff
        also gets interest for the entire 8 years that this litigation took
        (did you read that? 8 years for a no-fault litigation!)- which comes
        to $6413.33; as well as $289.62 for appellate printing costs.


        Mann v. Cooper Tire Co., 2003 WL 21267251 (1st Dept.2003)

        This was an appeal from an order which denied defendants' Motion to
        dismiss two related lawsuits that arose out of a motor vehicle
        accident that occurred in Quebec. Defendants relied on Quebec's
        Automobile Insurance Act (Rsq ch A-25), a no-fault statute that
        prohibits actions to recover non-economic loss for injuries sustained
        in car accidents on its roadways, no matter how serious the injury.
        This law, stated the court, is in conflict with New York's common law
        of products liability and negligence, which permit actions to recover
        unlimited non-economic (i.e., pain and suffering) damages for
        injuries caused by defective products and for serious injuries
        arising out of negligence in the use or operation of a motor vehicle.
        The "significant contacts" with NY in this case were (1) the purchase
        of the allegedly defective tire in New York; (2) the car's
        registration in New York; (3) the car's ownership by a New York
        domiciliary who was a passenger; (4) the car's operation by a New
        York domiciliary who had a New York driver's license and was killed
        in the accident when the car rolled over; (5) and the presense of two
        passengers in the car who were New York domiciliaries and were
        injured in the accident. The tire manufacturer and distributor who
        were defendants in this case are Delaware corporations that have
        their principal places of business in Ohio and Tennessee and conduct
        business throughout the world; the tire was apparently manufacured in
        Georgia. The "contacts" with Quebec were the occurrence of the
        accident and the initial treatment of injuries there. The Court,
        after reviewing the range of contacts with the two jurisdictions,
        held that NY's interest in having its products liability and
        negligence laws applied to compensate its residents for injuries
        sustained by a defective product sold in New York is greater than
        Quebec's interest in having its no-fault law uniformly applied so as
        to prohibit compensation to United States residents. Therefore, NY,
        rather than Quebec law, applies to the case, and the plaintiffs, who
        sustained "serious injuries" as defined by NY law, may maintain their


        Bodea v. Trans Nat Express Inc. et al., 731 NYS2d 113 (4th Dept 2001)

        Boeda was injured in an auto accident during a snowstorm in Jefferson
        County, NY on 1/04/99, while he was driving from Ottawa to Maryland,
        where he was employed and maintained an apartment. Defendant St.
        Germine-a Quebec resident-- was driving a tractor trailer owned by a
        Canadian company and was unable to stop as he approached plaintiff's
        car, and hit plaintiff in the rear. Defendants moved to dismiss on
        the grounds of forum non convenies, arguing that New York did not
        have a sustatial nexus with the action. In the alternative, they
        sought a ruling that Ontario law apply regarding damages. Supreme
        Court, Jefferson County, denied both aspects of the Motion. The
        Appellate Division affirmed. While the mere fact that NY was the
        location of the accident is not enough to create a "substantial
        nexus" with the action, many of the witnesses reside in NY, including
        4 eyewitnesses, police, and medical personnel at the scene. The
        testimony of these witnesses is crucial because plaintiff has no
        recollection of the accident. Therefore NY is neither an inconvenient
        forum, nor does it lack a substantial nexus. As to the applicable
        law, the laws of NY, Ontario and Quebec [the latter being Canadian
        provinces] conflict regarding automobile damages. New York provides
        no-fault compensation for basic economic loss and allows unlimited
        fault-based recovery for non-economic loss under certain
        circumstances, and the amount of revovery is limited. Qubec has a no-
        fault law as well, but an injured person may not sue for non-economic
        loss. Choice-of-law rules require application of the law of the
        jurisdiction which has the greatest concern with the issues raised in
        the litigation. If the parties live in different states, and the
        accident occurs in a third state, the law of the accident site
        usually applies unless there is a compeling reason otherwise. Here,
        although plaintiff and defendants are all Canada residents, they
        reside in different provinces with conflicting laws. Therefore New
        York no-fault law (as well has the right to sue for unlimited
        damages) applies.

        NEW YORK

        Kranzler v. Austin, 732 NYS2d 328 (App. Term, 2d Dept 2001)

        This lawsuit presents an interesting and complex issue: New Jersey
        allows auto insurance buyers the option, for an additional premium,
        to avoid the no-fault threshold so that they can sue for any injury,
        no matter how minor (NJSA 39:6A-8). So if such a NJ resident gets
        into an MVA in NY with a NY resident and sues in NY, does he have to
        meet the threshold? Yes, says the Appellate Term, affirming Civil
        Court, Kings County. The Neumeier rule applies the law of the place
        of injury where, as here, the litigants live in different States and
        each State's law favors that State's residents (NJ's no-threshold
        rule favors plaintiff, while NY's threshold rule would favor
        defendant in this case). Therefore NY law, with its threshold
        requirement, applies. And because this plaintiff's injuries don't
        meet the threshold, the case is dismissed.


        Talron Enterprises, Inc, v. Garcia, NYLJ 6/10/02, Civil Court, New
        York County 2002

        Garcia, a NY resident, rented a car from Talron, a NY Company. The
        rental agreement, executed in NY, provided that Garcia was the only
        authorized driver. Garcia's son, Dalmasi was driving the car in NJ
        when he was involved in a one-car accident. Talron brought this suit
        against Garcia and Dalmasi for property damage. Garcia and Dalmasi
        brought a 3rd party action against Geico, which insured Dalmasi, and
        Reliance, which insured Talron, for no-fault benefits. Reliance had
        disclaimed because the car was being operated by an unauthorized
        driver of a rental car. In such cases, NJ law considers the vehicle
        to be "uninsured," and UM benefits are available. The Court
        also "noted" that non-NJ residents in vehicles not registered in New
        Jersey are not covered by NJ's no-fault law. On the other and, NY law
        would "yield a contrary result." Plaintiff Talron, as the car's
        owner, is vicariously liable for the driver of its rental cars,
        whether authorized or not, and therefore Reliance would be on the
        hook for coverage. Reliance argued that NJ, and not NY law applies to
        this case. The question of no-fault benefits involves a "loss
        allocating" law, not a "conduct regulating" law, and so in a choice-
        of-law analysis, New York legal principles favor the law of the State
        in which the parties have a common domicile. In this case, all the
        parties reside in NY, and they made their contract in New York, and
        so NY law applies. Furthermore, for purposes of no-fault benefits, it
        is irrelevant whether the driver violated any of NJ's traffic laws.
        And therefore NY's no-fault law, which was "enacted to ensure prompt
        and full compensation for an injured party's basic economic loss,
        without regard to fault," applies. That makes Reliance, which insures
        the rental vehicle in question, responsible for no-fault benefits.


        Dr. Carmen Olmedo a/a/o Michael Levin and Hanover Insurance Company,
        25 NYS No-Fault/SUM Arbitration Reporter, Case NF 2917 (Jackie
        Gallers, Arbitrator)

        In this NY no fault arbitration, Dr. Olmedo sought $7024.78 for
        medical services provided to Michael Levin. Mr. Levin was a passenger
        in a car registered in NJ and owned and operated by a NJ resident,
        which was involved in a collision in NJ. Hanover denied payment of
        PIP benefits based on two exclusions in its policy: Exclusion (i)
        provides that the PIP coverage does not apply to injuries sustained
        by any NY resident other than the named insured or relative, injured
        in an auto accident outside NY State, if that person is the owner or
        relative of the owner of a car with a NY no-fault policy. Exclusion
        (j) is basically the same but also excludes coverage for a NY
        resident, resided with a relative who owned a car. The arbitrator
        pointed out that New Jersey statutes, provides that NJ PIP "follows
        the individual," whereas in NY, PIP "follows the vehicle." Because
        Mr. Levin was not a member of the household of the owner of the NJ
        car which he was riding, and he resided with a NY resident who did
        own a car with no-fault insurance, "there would be no coverage for
        him under the New Jersey statute." This case, held the arbitrator, is
        governed by the statutes of NJ because the accident occurred in NJ in
        a car registered in NJ. "As such... Mr. Levin must seek coverage from
        the motor vehicle insurance policy in the household in which he
        resides and in which there is a motor vehicle."

        SECOND IME

        Ayyub v. Smith and CGU Ins. Co., 737 NYS2d 493 (4th Dept 2002)

        Plaintiff sued both the driver of the car that hit her, and her no-
        fault insurer in a dispute over benefits. After suit was commended,
        CGU requested a second IME of plaintiff. Plaintiff refused, and CGU
        moved for summary judgment based on this refusal. Supreme Court,
        Allegany County, denied the Motion. The Appellate Division
        affirmed. "Even assuming, arguendo, that the second examination is a
        condition precedent to coverage, we conclude that there is an issue
        of fact whether, by its actions prior to the commencement of the
        action, defendant denied or repudiated the claim sufficient to excuse
        plaintiff from compliance with that condidtion precedent."
        Furthermore, CGU "failed to establish... that the request for a
        second medical examination was reasonable under the terms of the


        Millenium Physical Medicine and Rehabilitations PC a/a/o Edith
        Carranza v. Kemper Insurance Company, (unreported) District Court,
        Nassau County (Asarch,j.)

        In this no-fault benefits lawsuit, Kemper denied bills based on the
        assignor's failure to appear for two scheduled IME's on 6/22/00 and
        7/06/00. Benefits were cut off as of 7/06/00. "From the papers in
        support of [our summary judgment] Motion, "held the Court, "it is
        clear that the assignor received notice of the requested medical
        examinations on June 15, 2000, the date on which the return receipt
        card was signed for. The proof is uncontradicted that the assigno
        failed to appear for examination before either [the orthosurgeon, the
        cardiologist, or the chiropractor]. The dates of the examinations are
        prior to the dates of services rendered by the plaintiff. The
        assignor's failure to appear for independent medical examinations
        should not, in and of itself, be a bar to plaintiff's services
        rendered prior to his failure to appear. While a trial would be
        necessary in most situations, "ruled the Court, "this is not such a
        case." Here, "the plaintiff has offered no reason to explain why the
        assignor failed to appear for any of the medical examinations. A
        condition of the policy issued by the assignor requires her to submit
        to a medical examination by physicians selected by the insurer when,
        and as often as, the Company may reasonably require... The repeated
        unexplained failure to submit to the physical examinations without
        any cause shown bars the assignor's, and hence the assignee's,
        recovery on the claims submitted herein." Summary Judgment was
        granted to Kemper.


        Beverly Hills PC v. Progressive Ins. Co., NYLJ 2/4/03 (District
        Court, Nassau County)(MILLER,j.)

        Plaintiff medical provider sued for no-fault benefits; the insurer
        moved for summary judgment. Within a month after the subject car
        accident, Progressive became aware of it and arranged for an IME--
        before the assignor even began medical treatment. The assignor did
        not attend the IME (for reasons which are not part of the record),
        and defendant issued a denial. Plaintiff, apparently without
        knowledge that the assignor did not attend the IME, began treating
        the assignor and sent a proof claim on 4/15/02. Defendant issued a
        second timely denial based on the IME no-show. The Court noted,
        first, that there is a dearth of case law on the question of whether
        a no-fault insurer can demand an IME before a claim has been
        submitted, and whether a no-show to such an IME can form the basis
        for a valid denial. The Court acknowledged several arbitration
        decisions going that was, and one 2nd Department decision upholding
        one of those arb decisions as having a "rational basis." But, held
        this Court, that is not persuasive enough. No-fault medical
        services "would reapidly become unavailable or very difficult to
        administer if medical providers must first establish, prior to
        rendering services, whether their patient has failed to submit to an
        insurance company's demand for an examination." To impose such a
        burden would have a "chilling effect on the provision of medical
        services to injured parties... The Court went on to state that the
        assignor "may not have realized the extent of injury at the time that
        defendant demanded medical examinations, and therefore may not have
        seen the need for them." And although the IME notice stated
        BENEFITS," such wording "is hardly fair warning that failure to keep
        appointment will result in loss of all future benefits..." Not only
        that, but there is no evidence that the assignor spoke English or was
        able to understand the IME notice--and the insurer was "certainly on
        inquiry notice, from the assignor's name [Singh], that a foreign
        language might be involved." "For all of these reasons," held the
        Court, "it cannot be held that, as a matter of law, that the
        defendant's demands for a medical examination were reasonable under
        the facts of this case, and therefore it cannot be held that the
        plaintiff's assignor failed to comply with the conditions of the
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