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February, 2000
I
"MAXIMUM MEDICAL IMPROVEMENT" HELD NOT BASIS TO DENY NO-FAULT BENEFITS UNDER INSURANCE LAW §5102(a)(1). In Hobby v. CNA Ins. Co., CA 993090 (4th Dept. December 30, 1999), the Fourth Department unanimously affirmed a Supreme Court decision which granted plaintiffs motion for summary judgment compelling the defendant insurance company to pay outstanding medical bills pursuant to the no-fault provisions contained in the plaintiffs insurance policy. The defendant insurance company sought to discontinue the plaintiffs insurance benefits on the grounds that the plaintiff had reached "maximum medical improvement." In upholding the lower courts decision, the Fourth Department pointed out that there is no authority under Insurance Law §5102(a)(1) to deny no-fault benefits on the grounds that the plaintiff had reached "maximum medical improvement." The Court reasoned that since §5102(a)(1) provides up to $50,000 for "all necessary medical expenses" for medical treatment, the plaintiff was entitled to receive benefits even if the plaintiff had reached maximum medical improvement. The Court also discarded the defendant insurance companys argument that "maximum medical improvement" has been accepted for several years as a basis for denial of no-fault benefits by arbitrators as the Courts are not bound by arbitrators decisions. The question now becomes what medical finding is necessary to deny no-fault benefits. Query: Would a medical determination that further medical treatments are "no longer necessary" serve as a sufficient basis for a denial of no-fault benefits? Would a health care provider give such an opinion? II
THE COURT OF APPEALS REVERSES HENRY CASE AND RESTORES TOLL FOR INFANCY. In Henry v. City of New York, 244 A.D.2d 93, 676 N.Y.S.2d 616 (2nd Dept. 1998), the Appellate Division, Second Department, held that a toll for infancy under CPLR §208 stops when an attorney has been retained by the infants parents. The Second Department reasoned that the retention of counsel in a timely fashion effectively cancelled infancy as a disabling factor and, therefore, there was no "disability because of infancy" in order to trigger the tolling provision of CPLR §208. Under the Second Departments decision, the statute of limitations would therefore be measured from the time the disability ceased which was when counsel was retained. Since this decision was handed down by the Second Department in 1998, several other departments have addressed the same issue and none agreed with the Second Department. The Court of Appeals of New York have on December 20, 1999 reversed the Second Departments decision in Henry v. City of New York, 1999 ___ W.L. 1215140 (New York 1999). In overruling the Second Department, the Court of Appeals held that the special status accorded an infant plaintiff by virtue of the plaintiffs age is not altered by the action or inaction of the infants parent or guardian. The Court reasoned that it is the age and capacity of the infant rather than the conduct of the infants parents or guardians which control. The Court of Appeals decision restored the infancy toll to where it was prior to the Second Departments decision.
III
FALL FROM TRUCK NOT WITHIN THE PURVIEW OF LABOR LAW §240. In Spears v. State of New York, ___ A.D.2d ___, 698 N.Y.S.2d 135 (4th Dept. 1999), the Appellate Division, Fourth Department, upheld a decision from the Court of Claims which denied plaintiffs motion for partial summary judgment under the "scaffold law" (Labor Law §240) and dismissed that cause of action sua sponte. The plaintiff in Spears was employed as a dump truck driver for an entity which contracted with the State to renovate a highway. The plaintiff was preparing to unload asphalt at the site when he climbed to the top of the dump truck to repair a tarpaulin and fell approximately 15 feet. In upholding the Court of Claims dismissal of the plaintiffs Labor Law cause of action, the Appellate Division held that the highway grade is not a "building or structure" under the "scaffold law" and the owner of the highway owed no duty to the driver under the "scaffold law" with respect to the truck. The plaintiff contended that the plaintiffs employers dump truck may be considered a structure within the meaning of §240(1). The Appellate Division did not dispute this point, but still found that the "scaffold law" did not apply because the defendant State of New York neither owned nor contracted for the repair of the dump truck.
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