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IN THIS NO-FAULT INSURANCE MATTER, PLAINTIFF INSURER DID NOT DEMONSTRATE COMPLIANCE WITH THE NYCRR SUCH THAT IT WAS ENTITLED TO SUMMARY JUDGMENT BASED UPON THE INSURED’S FAILURE TO APPEAR FOR AN INDEPENDENT MEDICAL EXAMINATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff insurer did not demonstrate it was entitled to summary judgment based upon the insured’s failure to appear for an independent medical examination (IME):

[Plaintiff insurer’s] its motion papers did not demonstrate that it sustained its burden of showing that it complied with New York State no-fault regulations (11 NYCRR § 65-3.5[b], [d]) governing the timeframes for scheduling IMEs … .. Specifically, plaintiff did not establish that it timely requested the IMEs under the applicable no-fault regulations, since plaintiff’s motion papers did not establish the dates of the verification forms that it received from the medical provider defendants; therefore, it is not possible to determine whether plaintiff sent the appropriate notices within 15 business days or 30 calendar days of receiving the forms, as required under (11 NYCRR) § 65-3.5(b) and (d) …  American Tr. Ins. Co. v Alcantara, 2022 NY Slip Op 01871, First Dept 3-17-22

Practice Point: An insurer must show compliance with the regulatory timeframes for scheduling an independent medical examination (IME) before it will be entitled to summary judgment based on an insured’s failure to appear at an IME.

 

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TILTING A SKID FROM A VERTICAL POSITION ONTO A DOLLY IS COVERED UNDER LABOR LAW 240(1), QUESTION OF FACT WHETHER A SAFETY DEVICE WAS REQUIRED.
AFFIDAVIT FROM AN EYEWITNESS TO THE ACCIDENT SUBMITTED WITH THE REPLY PAPERS WAS PROPERLY CONSIDERED AS IT DID NOT CONFLICT THE WITNESS’S OTHER AFFIDAVIT OR THE WITNESS’S PRIOR UNSWORN STATEMENT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (SECOND DEPT).
HERE THE DOCTRINE OF RES JUDICATA PRECLUDED PLAINTIFF’S FRAUDULENT CONVEYANCE ACTION; THE CAUSE OF ACTION COULD HAVE BEEN RAISED IN THE PRIOR ACTION WHICH WAS DISMISSED (FIRST DEPT).
ALTHOUGH PLAINTIFF WAS AWARDED SUMMARY JUDGMENT IN THIS QUANTUM MERUIT CASE. DEFENDANT DID NOT WAIVE A JURY TRIAL AND WAS THEREFORE ENTITLED TO A JURY TRIAL ON DAMAGES; BENCH-TRIAL VERDICT REVERSED (FIRST DEPT).
DEFENDANT DID NOT DEMONSTRATE WHEN THE STAIRWELL WAS LAST INSPECTED OR CLEANED IN THIS SLIP AND FALL CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
FALL FROM A FOLDED, UNSECURED A-FRAME LADDER AFTER PLAINTIFF RECEIVED AN ELECTRIC SHOCK ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, SUPREME COURT REVERSED, TWO-JUSTICE DISSENT (FIRST DEPT). ​
AMENDMENT TO WORKERS’ COMPENSATION LAW WHICH IMPOSED LIABILITY UPON INSURERS FOR REOPENED CASES PREVIOUSLY COVERED BY THE SPECIAL FUND IS UNCONSTITUTIONAL.

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