To Prove Staged Accident in Judge Velasquez' Courtroom, the Standard is Preponderance of Evidence

In Universal Open MRI of the Bronx, P.C. v State Farm Mut. Auto Ins., decided on May 11, 2006, Judge Velasquez at Civil Court, Kings County ruled evidence defendant presented insufficient to prove a staged accident. While unremarkable by itself, he goes into a detailed analysis as to the standard of proof required. He ultimately adopts the standard of preponderance of evidence. The decision is worth reading.

An Example of An Effective Peer Review Defense - Where Plaintiff Does Not Produce a Witness

In Expo Med. Supplies, Inc. v Clarendon Ins. Co., 2006 NY Slip Op 50892(U), decided May 15, 2006 in Civil Court, Kings County, Judge Delores J. Thomas held that defendant's Peer Review Doctor Ronald A. Csillag's testimony was sufficient to carry their burden to prove that the supplies were not medically necessary. Plaintiff did not produce a witness, but instead relied upon the report of Dr. Barshay. The court found that no evidence was presented to refute defendant's testimony.

Affidavit Re Proof Of Mailing Must Be Specific to be Sufficient

In A.B. Med. Servs. PLLC v Specialty Natl. Ins. Co., 2006 NYSlipOp 50810(U), decided April 28, 2006, the appellate term second department vacated a judgment against defendant since among other things, plaintiff's affidavit was insufficient to prove mailing. In his affidavit, plaintiffs' "practice and billing manager" alleged that he "issued all of the billings," that he "personally billed out the claim," and that "[a]ll billing of plaintiff was sent to defendant." The court said this was not enough.

Amazing - IME No Show = No Pay

In two cases, Amaze Med. Supply Inc. v Allstate Ins. Co. and Amaze Med. Supply Inc. v General Assur. Co., the appellate department confirmed the viability of the defense that plaintiff's assignor failed to appear for IMEs. In the second case, the court also states that an affidavit by a supervisor with knowledge of the mailing procedures is enough to prove mailing of the IME letters.

Never Mind that the Regulation Requires the Endorsement, Prove to Us It's There

In yet another set-back for the defense bar, the appellate division second department held in Dilon Med. Supply Corp. v Progressive Cas. Ins. Co., 2006 NYSlipOp 50908(U), decided May 17, 2006 that requests for examinations under oath did not toll the thirty day rule as defendant failed to provide proof that the policy endorsements mandated by the new regulations were made a part of the applicable policy.

First, every policy issued or renewed is required by law to include the endorsement. Second, the claim involved appears to have arisen right when the new regulations went into effect, so it dealt with a situation where a plaintiff could call into question whether the new endorsement controlled. If plaintiff raised such an issue, defendant should have been afforded an opportunity to respond rather than ruling against them by fiat.

A Nurse's Peer Review Not Enough

In SZ Med. P.C. v Country-Wide Ins. Co., 2006 NYSlipOp 26194, decided May 17, 2006, the appellate term second department held in part that a nurse's unsworn peer review was not enough to establish lack of medical necessity,absent some proof of the ability of that nurse to give a medical opinion. I think I know at least one nurse who would disagree with the latter part of the court's reasoning.

180 Rule Viable But You Need Proof

In Continental Med., P.C. v Travelers Indem. Co. , 2006 NYSlipOp 50841(U), decided May 11, 2006, the appellate term, first department reversed summary judgment for defendant on the 180 day rule, in effect saying that insufficient proof was put forward as to the date of receipt of the notice of loss.