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Daniel Flanzig quoted in LexisNexis Law360 Discussing the Recent Ct. of Appeals decision on NY's "No-Fault" Law

NY Court Ruling On No-Fault Testimony Will Spur More Trials

By Pete Brush

Law360, New York (October 15, 2013, 9:16 PM ET) -- A decision by New York's top court to uphold a plaintiff's clumsy explanation for seeking damages under the state's no-fault auto insurance law despite a pause in his medical treatment marked a slap to judges keen on weeding out spurious suits and will see more claims go to trial, experts said Tuesday.

Trial lawyers cheered the 5-2 ruling in the New York State Court of Appeals, which reversed two lower courts that had found personal injury plaintiff Nandkumar Ramkumar's testimony — that he ceased treatment because "they cut me off like five months" from receiving physical therapy — insufficient to withstand a summary judgment motion.

The ruling came in a suit brought by Ramkumar, a Queens, N.Y., resident who claims he sustained knee and back injuries in a livery car collision in 2007, that is being closely watched by plaintiffs' lawyers as well as New York's defense bar and insurance industry.

"While it would have been preferable for plaintiff to submit an affidavit in opposition to summary judgment explaining why the no-fault insurer terminated his benefits and that he did not have medical insurance ... plaintiff has come forward with the bare minimum required to raise an issue" for trial, a five-judge majority of the state's court of last resort ruled in an unsigned decision.

The decision marked the latest precedential chapter in the ongoing struggle between trial lawyers and their opponents in the no-fault personal injury arena, and Ramkumar's appellate lawyer Judah Z. Cohen said it marked "a victory for the everyman fighting an uphill battle" against powerful insurers.

And the top court took an unmistakable shot at the Bronx trial judge and the midlevel appellate court that ruled against Ramkumar, according to trial lawyer Ken Mollins of the Law Office of Kenneth M. Mollins PC.

Mollins was referring to language in the ruling that took especially the lower appellate court — New York City's First Department — to task for attempting to effect an "unwarranted expansion" of state precedent that requires a "reasonable explanation" for terminating treatment to include the production of documentary evidence.

"The Appellate Division is trying to put up roadblocks for plaintiffs," Mollins said. "They are trying to make it more difficult to recover. They're trying to weed out fraud, but in doing so, they are hurting legitimate plaintiffs."

Trial lawyers added that plaintiffs, no matter how inarticulate, should be able to count on their testimony — at least in the early stages of a case.

"A person's testimony is always evidence. But a motion for summary judgment is decided on the law, not on credibility of what's being said," Mollins said. "A jury can say later that it's not a reasonable explanation."

But Empire State property and casualty insurers see the issue differently. Some estimates say the state's no-fault laws, designed to make sure drivers can get speedy relief when injured in an collision, are prone to so much fraud that it costs insurers, and policyholders by extension, $1 billion per year.

New York Insurance Association Inc. President Ellen Melchionni called the decision disappointing.

"A proper explanation could entail an affidavit in opposition to summary judgment that includes the claimant identifying the auto carrier by name and either attaching a written communication or describing an oral notification from the carrier stating the reason why no-fault benefits were terminated," she said.

Melchionni said the dissent, which looked askance upon the plaintiff's "vague statement," should have won the day. That dissent, penned by Court of Appeals Judge Robert S. Smith with Judge Susan P. Read concurring, said "the majority lowers the barriers that courts have erected against baseless no-fault claims."

But trial lawyers including Cohen rejected that notion, arguing it should not become the burden of individual plaintiffs to be responsible in court for the fraudulent claims of others.

"An individual coming before the court does not argue for plaintiffs everywhere," Cohen said.

Another trial lawyer, Dan Flanzig of Flanzig & Flanzig LLP, agreed, saying the Court of Appeals avoided what would have amounted to a very harsh precedent related to testimony of claimants off all stripes.

"It is unfair for a court to make an assumption that a plaintiff is not truthful when giving a reason that they are not receiving needed treatment," Flanzig said. "The reality is that many collision victims are too quickly denied no-fault benefits from doctors retained by these carriers."

In most cases, according to Flanzig, "there is a strong chance that the victim is not receiving treatment not because they don't need it but because they simply can't afford it."

For its part, the New York State Trial Lawyers Association said the high court had "once again injected reason into the process and the common-sense application of the law prevailed."

The Ramkumar ruling likely won't be the last word in the ongoing battle over the no-fault insurance law, according to Mollins.

Even though the court put to bed the notion that documentary evidence is required, it may soon have to grapple again with testimony that may or may not be sufficient.

"The decision clarifies that plaintiffs don't need proof, but it could complicate matters as to what testimony might be reasonable," he said. "What makes this reasonable? Why does what this plaintiff said fit into the definition of reasonableness? This decision clarifies — but it also complicates."

Ramkumar is represented before the appellate court by the Law Office of Judah Z. Cohen PLLC. Grand Style Transportation Enterprises Inc. is represented by Matthew W. Naparty of Mauro Lilling Naparty LLP. Bisnath and Danish Bissessar are represented by Ashley E. Sproat of Burke Gordon & Conway.

The case is Ramkumar v. Grand Style Transportation Enterprises Inc., case No. 170, in the New York State Court of Appeals.

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