Our Pennsylvania Location
We are pleased to announce that our Pennsylvania Office location has changed from Lord's Valley Pennsylvania, to our new location at the intersection of Church Street and Main Ave/Route 6 in Hawley Pennsylvania as we have outgrown our previous location. Our new offices include multiple conference rooms to accommodate our clients needs.
New Jersey's Appellate Decision on PIP/Health Care Primary.
On July 27, 2021, the Appellate Division of the Superior Court of the State of New Jersey issued a decision entitled Palisades Insurance Company v. Horizon Blue Cross Blue Shield of New Jersey, under Docket A-2830-19. Notably, the matter concerned multiple claims between the parties with policies that had elected for their health insurance to be the primary coverage. Palisades, in processing the claims, had paid out under PIP after requesting information from Horizon about the policies and coverage. The Court found, that in doing so, that the PIP insurer had no right to subrogation under the statutes, and that the voluntary payments were not recoverable. The Court did note some possible other avenues to be approached by the insurer. A copy of the decision is maintained on the Court's website, which is linked here.
Operation Sledgehammer
Earlier this year, Westchester County announced operation sledgehammer, a large scale automobile damage fraud ring. The takedown involved multiple repair facilities and persons. A detailed press release can be found here. In compliance with the Rules of Professional Conduct, Rule 3.6, you are advised that a charge is merely an accusation and that a defendant is presumed innocent until and unless proven guilty.
NEW JERSEY COURTS
As part of the return to full operations in New Jersey, the New Jersey Court system has now moved into Phase II of their plan to return. This means that about 10-15% of Court staff will be on site. Civil matters will generally continue to be done remotely. Phase 3 transition will be addressed as the State and Courts continue to monitor the situation. The Release from the New Jersey Judiciary can be read here.
New Jersey's most recent Order on the operations of the Court can be found here.
Notably, Special Civil trials may proceed via remote means and in-person depositions may resume using appropriate social distancing.
As of that Order, New Jersey has gone to a partial in-person proceedings system, depending on the nature of the action.
As always, we will be updating our website to keep you apprised of all changes.
New York State Courts, City Courts Resuming Operations
New York’s Unified Court system has indicated that the State Courts will be returning to in-person operations. However, for the time being, some trials and civil motion hearings in the Civil Courts of the City of New York are being heard remotely on consent of the parties. Further updates will be posted here as information becomes available.
Civil Queens
As a result of COVID-19 and its impact on court operations, the Civil Court of Queens County has entertained a bi-weekly, virtual calendar call in order to catch up on procedural and substantive motions that were not heard while the Court was closed. During each of these bi-weekly calls, the Hon. Tracy Catapano-Fox has been swiftly going through a prior weekly calendar and has entertained dispositions, settlements, adjournments and has been hearing oral arguments. The Court will be up to date with calendar calls on July 10, 2020.
The Court will be starting a daily, Non-Jury trial calendar call on July 6, 2020, to mark matters as ready for trial and dispositions. An afternoon call will be held to facilitate and conduct trials. Although Judge Catapano-Fox indicated that the use of Microsoft Teams technology will be used for the foreseeable future, the Court will allow adjournments for parties that do not wish to proceed virtually, for now.
Civil Kings
As a result of COVID-19, the Civil Court of Kings County has entertained a daily calendar for dispositions of matters. However, we are happy to report that the Court will be starting a virtual daily calendar call for procedural and substantive motions, beginning on July 6, 2020. At that time, parties will be able to settle matter, enter into consent orders and orally argue motions. The Judge anticipates that decisions will be rendered from the bench or decisions be reserved. . As was the case prior to COVID-19, matters that are on the calendar for the first time will be adjourned. Additionally, the Court will not entertain any defaults until the Chief Administrative Judge of the New York State Unified Court System gives the go ahead. Judge Walker-Diallo indicated that filing through NYSCEF (New York State Court Electronic Filing) will be implemented this coming Fall.
Pennsylvania Court Operations
The most recent guidance from the Pennsylvania Court system can be found here. Pennsylvania's individual county and local Courts shall issue their own guidance as to what matters will proceed in person and how they will handle judicial operations as a whole.
Legal Cases of Note
New Jersey adopted the ongoing storm rule via the decision in Angel Alberto Pareja v. Princeton International Properties (A-4-20) (084394)
Following an Appellate Division decision overturning a trial Court decision relying upon the “ongoing storm rule” the Supreme Court has indicated that it would take up the matter. The ongoing storm rule, as noted by the appellate Court, has not been directly called upon in recent case law. Instead, the Appellate Court’s own decisions have generally found that a commercial property owner has a duty to act within a reasonable period of time after the landowner knows or has reason to know of a dangerous condition caused by the accumulation of snow and ice.
The Court ultimately found that Commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm, but unusual circumstances may give rise to a duty before then. There are two exceptions that could impose a duty: if the owner’s conduct increases the risk, or the danger is pre-existing.
A copy of the decision can be found here.
The New York Court of Appeals, Third Department recently concluded that a driver for UBER is an employee for the purposes of unemployment insurance contributions in the State of New York. A copy of the decisions can be found here.
Legal News of Note
On November 13, 2020, Albert Davydov of Rego Park, New York, pled guilty to violations of the anti-kickback statute relating to the issuance of Durable Medical Equipment. Notably, the federal government has been reporting kickback scheme violations concerning compounding pharmacy operations, durable medical equipment and some other pain management procedure billing. A copy of the Davydov press release can be found here. Similar operations were noted in a September 30, 2020 press release, which can be found here. As always, should you have a concern about billing abnormalities, you should seek advice from counsel.
Recent Wins
State Farm v. Kettia Dernier, ESX-L-7353-19
On August 7, 2020, State Farm was awarded a Judgment of $500,459.46 following the litigation of a Declaratory Judgment action filed against 16 individuals that the insurer had found participated in 5 staged automobile accidents in Essex County, New Jersey. The participants had engaged in an elaborate scheme involving left hand turn collisions, where they would target unsuspecting motorists at intersections or claimed that they had been struck by phantom vehicles which fled the scene. State Farm’s detailed and thorough investigation lead to the discovery of connections between these individuals and dozens of other persons who had staged similar accidents within the area.
AAA Case No. 99-20-1170-1266
Successfully argued that the underlying arbitrator did not address eligibility for worker's compensation offset reductions to be applied. Master arbitrator found that the offset reductions would need to be specifically considered and the matter remanded for consideration of same.
AAA Case No. 17-18-1087-7873
Atlas Radiology, P.C. K.K. v. Mercury Casualty Company
Successfully argued that the prior determination in the Court system for a separate medical provider, where the Court found that the Applicant for Benefits filed to appear for an EUO, and therefore breached policy conditions, should apply as the "law of the case" for the other provider, thereby upholding the EUO No-Show.
AAA Case No. 17-18-1103-7542
Comprehensive Medical Assist PC / D.B. v. American Family Connect Insurance Company
Successfully argued that, upon completion of an Examination Under Oath where it was discovered that the vehicle was not principally garaged at the policy address, but instead at a wholly separate location, that the EIP engaged in material misrepresentation in the securing of the policy which supported a denial of coverage.
Index No.: 655456/2019
AMERIPRISE INSURANCE COMPANY V. QUEENS MEDICAL PAVILION, LLC d/b/a NY MED a/a/o E. T.
Successful Article 75 Petition vacating an arbitration award where the policy was exhausted prior to the issuance of the award, in which the award was originally rendered in violation of 11 NYCRR § 65-4.109(a)(2).
AAA Case No. 17-19-1119-6849
Diagnostic Imaging of Rockville Centre, PC A.T. v American Family Connect Insurance Company f/k/a Ameriprise Insurance Company
Successfully argued that the MRI were performed prematurely where there were no indications of progressive neurological deficits,
myelopathy or red flags. Medical expert's findings and report was upheld where the rebuttal from Applicant did not apply or correlate the criteria outlined by the expert.
AAA Case No. 17-19-1130-7307
M & D Elite Pharmacy LLC / M. S. v. Ameriprise Ins. Co.
Successfully argued that the provider’s failure to respond to requested verification within 120 days precluded reimbursement where the provider did not respond and raised a challenge to the legality at the requests only at the arbitration hearing.
AAA Case No. 17-19-1132-7378
Accelerated Surgical Center of North Jersey / G. A v. Ameriprise Ins. Co.
In this matter, Applicant’s assignee was requested to appear for an Examination Under Oath. During the EUO, the assignee failed to respond to various questions concerning the nature and circumstances of the accident. The arbitrator found that these questions were extremely relevant and critical and supported timely denials issued in support of same, furthering the support for thorough Examinations Under Oath.
AAA Case No. 17-18-1108-0650
BNL Acupuncture P.C. / J. D. v. Ameriprise Ins. Co.
Michael Callinan successfully argued that the Applicant’s failure to appear for an Examination Under Oath duly scheduled on two separate occasions precluded reimbursement for No-Fault benefits.
AAA Case No. 17-18-1112-4239
Health and Comfort Rx Inc / T. G. v. Ameriprise Insurance Company
Matthew J. Smith successfully argued that the Assignor’s failure to appear for appear for two duly scheduled Examinations Under Oath precluded reimbursement to the Applicant for No-Fault benefits.
Watson v. Picone 151086/2017 Supreme Court, County of Richmond
Defendant’s Motion for Summary Judgment successful where Defendant’s medical experts, through proper admissible form, found that the injuries complained of were pre-existing degenerative changes which did not meet the serious injury threshold. The Defendants also relied upon prior loss and treatment records to demonstrate the long-standing issues. The Court, in shifting the burden back to Plaintiff, found that the records Plaintiff relied upon were not in admissible form, and that even if they were, the records fell short of demonstrating that the injuries were causally related or fell under a “serious injury” as contemplated by New York State Insurance Law §5102(d).
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