The big one is Langan, which I posted about last week, and there is a little chatter about a footnote if you are interested.
A big change is coming to no-fault paradise. While you are there checking for the changes click on the NYFAIR thing–you will find NYFAIR's update on the Insurance Industry's 2011 agenda.
The Appellate Term, First Department published a slew of interesting cases, indicating a very sharp division between how the First and Second Department address peer review defenses, among other things.
Since the plaintiffs' motion was based upon an alleged "change in the law that would change the prior determination," it was, in actuality, a motion for renewal (CPLR 2221[e]; see Daniels v Millar El. Indus., Inc., 44 AD3d 895 ). While there is no time limitation in which to make a motion for leave to renew (see CPLR 2221[e]; Ramos v City of New York, 61 AD3d 51, 54 , app withdrawn 12 NY3d 922 ; Luna v Port Auth. of NY & N.J., 21 AD3d 324, 326 ), plaintiffs failed to demonstrate that their delay in seeking renewal for over four years was, in fact, due to a change in the law.
Contrary to plaintiffs' contention, appellate authority in their favor long preceded the motion court's decision in 2005 (see Presbyterian Hosp. in City of NY v Aetna Cas. & Sur. Co., 233 AD2d 433 , lv dismissed 89 NY2d 1030 ; Quality Med. Healthcare, P.C., v Lumberman's Mut. Cas. Co., 2002 NY Slip Op 50098[U] ), and the case cited by plaintiffs does not represent a change in decisional law (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 n 5 ). Moreover, plaintiffs failed to present a reasonable justification for their lengthy four-year delay in seeking renewal (see Levy v New York City Health & Hosps. Corp., 40 AD3d 359, 360 , lv dismissed 9 NY3d 1001 ).
Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.
Order (Arlene P. Bluth, J.), dated June 4, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $11,929.08. The Clerk is directed to enter judgment accordingly.
In this action to recover assigned first-party no-fault benefits, plaintiffs Carnegie Hill Orthopedic Services, P.C. and Devonshire Surgical Facility established their prima facie entitlement to summary judgment on their respective claims for $11,929.08, and $3,000 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 ). Specifically, defendant's documentary submissions established its receipt of plaintiffs' claims and that the claims were overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 ; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] ).
In opposition to the plaintiffs' motion for summary judgment, defendant, which was precluded under a so-ordered stipulation from offering certain evidence pertaining to its defense of lack of medical necessity (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 ), failed to raise a triable issue of fact (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d at 743; Devonshire Surgical Facility, supra). Accordingly, plaintiffs were entitled to judgment in their favor.
In opposition, defendant failed to raise a triable issue of fact. Even assuming that defendant issued timely denials of plaintiffs' claims (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 , lv denied 93 NY2d 809 ), the peer review report relied upon by defendant to deny plaintiffs' claims is conclusory and fails to set forth sufficient facts to raise triable issues with respect to its defense of lack of medical necessity (see East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50213[U]).
Order (Arlene P. Bluth, J.), dated June 4, 2008, modified to grant (1) summary judgment in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000 and (2) partial summary judgment in favor of plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $7,835.29; and, as so modified, order affirmed without costs. The Clerk is directed to enter judgment accordingly (see Devonshire Surgical Facility v American Tr. Ins. Co., Cal. No. 11-012, decided simultaneously herewith).
Another SJ on the complaint.
Plaintiff, a chiropractic practice, commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, who sustained injuries in a January 2009 automobile accident. The assignor was referred to plaintiff by a non-party practitioner. Defendant-insurer moved for summary judgment dismissing the complaint pursuant to Public Health Law § 238-a, claiming that plaintiff may not recover for the services rendered to the assignor because the referring practitioner had a "financial relationship" with plaintiff (see Public Health Law § 238-a[a], [b]). Civil Court granted the motion, and we now reverse.
Public Health Law § 238-a prohibits a practitioner from making a referral to a health care provider where the referring practitioner (or immediate family member of such practitioner) has a "financial relationship" with the health care provider (Public Health Law § 238-a[a]). A "financial relationship" is defined in section 238(3) of the Public Health Law as "an ownership interest, investment interest or compensation arrangement." Critically, a "compensation arrangement" means "any arrangement involving any remuneration between a practitioner, or immediate family member, and a health care provider" (Public Health Law § 238-a[a]), but does not include "payments for the rental or lease of office space" if there is a lease that meets specific enumerated requirements, i.e., is in writing, for a term of at least one year, with a rent consistent with fair market value and not based upon the volume or value of any referrals, and would be commercially reasonable even if no referrals were made (Public Health Law § 238-a[b][i]).
The evidence submitted by defendant in support of its motion failed to establish, prima facie, that there was any "financial relationship" between plaintiff and the referring practitioner. No allegation is made that there was any "ownership interest" or "investment interest" between [*2]plaintiff and the referring practitioner. Although defendant submitted some unparticularized evidence indicating that plaintiff leased unspecified office space from various unnamed physicians in 2007 — two years prior to the underlying referral — defendant's limited submission failed to establish that there was any "compensation arrangement" in general or any "payments for the rental or lease of office space" in particular, between plaintiff and the referring practitioner. Since defendant failed to meet its initial burden of establishing as a matter of law its defense pursuant to Public Health Law § 238-a, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiff's opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ).
The Appellate Term, Second Department put out a few decisions as well.
In this action to recover assigned first-party no-fault benefits, the Civil Court (Diccia T. Pineda-Kirwan, J.), after a nonjury trial, awarded plaintiff "the sum of $10,196 plus statutory interest and attorney's fees." Thereafter, plaintiff filed a proposed judgment which included, among other things, the sum of $4,259.42 in attorney's fees.
On October 24, 2006, defendant filed a "Rejection of Proposed Judgment." In that rejection, defendant stated, insofar as is relevant to this appeal, that the award of attorney's fees should be limited to the sum of $850. On October 30, 2006, plaintiff received two checks from defendant, one in the amount of $27,173 (representing the principal plus interest) and one in the amount of $915 (representing attorney's fees of $850 plus filing fees), which plaintiff deposited. On December 4, 2006, a judgment was entered in favor of plaintiff, which included, among other things, the sum of $4,259.42 in attorney's fees. Thereafter, plaintiff submitted the judgment to the marshal's office for collection of the balance due thereunder, and the marshal sent a notice of execution to defendant. Upon receiving the notice, defendant moved, in effect, to vacate the notice of levy and sale of its property. By order entered July 21, 2009, the Civil Court (Maureen A. Healy, J.) granted defendant's motion. This appeal by plaintiff ensued.
A review of defendant's moving papers indicates that defendant sought to challenge so much of the judgment as had awarded plaintiff attorney's fees in the sum of $4,259.42. In LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (12 NY3d 217 ), the Court of [*2]Appeals reversed an order of the Appellate Division, Third Department (46 AD3d 1290 ), which had held that attorney's fees in a no-fault action should be calculated on a per-claim, not a per-assignor, basis. Giving effect to an opinion letter of the Superintendent of Insurance (Ops General Counsel NY Ins. Dept. No. 03-10-04 [Oct. 2003]) which interpreted the Insurance Department regulation (Insurance Department Regulations [11 NYCRR] § 65-4.6) establishing the amount of statutory attorney's fees (Insurance Law § 5106 [a]) to be awarded, the Court of Appeals held that attorney's fees in no-fault actions are to be calculated based on the aggregate of all of the bills submitted by a provider with respect to each insured in any action, up to a maximum of $850. Since the regulation and the opinion letter of the Superintendent of Insurance fixing the proper method for calculating the amount to be awarded as attorney's fees pursuant to the regulation were extant at the time the judgment in the case at bar was entered; the Appellate Division ruling had not yet been handed down; the issue of the proper calculation of the attorney's fees due plaintiff had not at that time been determined by the court; and the assessment of the statutory attorney's fees pursuant to the Insurance Department regulation was, in essence, a ministerial matter, the clerk's mistake in entering a judgment which included attorney's fees in the sum of $4,259.42 was properly subject to correction by the Civil Court pursuant to CPLR 5019 (see Kiker v Nassau County, 85 NY2d 879  cf. Bank of NY v Carlucci, 289 AD2d 349  [where attorney's fees are not statutorily fixed, an award of attorney's fees is a substantive part of a judgment not subject to correction pursuant to CPLR 5019 (a)]). Accordingly, the order is affirmed and the matter is remitted to the Civil Court for the entry of a corrected judgment awarding plaintiff attorney's fees in the sum of $850.
The affidavit submitted by defendant's claims examiner in opposition to plaintiff's motion and in support of defendant's cross motion was sufficient to establish that defendant's claim denial forms, which denied plaintiff's claims on the ground that the equipment provided was not medically necessary, were timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The fact that there were handwritten notations on the claim denial forms did not [*2]affect their validity, and defendant was not, under these circumstances, required to provide a further explanation.
In addition, the affirmed peer review reports submitted by defendant's doctors were sufficient to establish a lack of medical necessity as they provided a factual basis and medical rationale for the doctors' determinations that there was a lack of medical necessity for the medical equipment at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]). Contrary to plaintiff's assertions, the fact that the peer reviewers took into consideration medical records of other providers in formulating their opinions did not render the peer review reports inadmissible (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
Since defendant established, prima facie, a lack of medical necessity for the equipment in question, the burden shifted to plaintiff to rebut defendant's prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition to defendant's cross motion, plaintiff submitted an affirmation from a doctor, which was sufficient to raise a triable issue of fact as to medical necessity (see Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; cf. A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, plaintiff's motion for summary judgment should have been denied, and we leave undisturbed the denial of defendant's cross motion.
The affidavit of defendant's litigation claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The mere denial by plaintiff's medical biller of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests (see Schmiemann v State Farm Fire & Cas. Co., 13 AD3d 514 ; Morales v Yaghoobian, 13 AD3d 424 ; Truscello v Olympia Constr., 294 AD2d 350 ). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant's motion for [*2]summary judgment dismissing the complaint was properly granted, as defendant's time to pay or deny the claims had not begun to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 ; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 ; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 ).
And there was a very interesting decision from a lower court.
In short, there appears to be no basis in the law, and no basis in logic, for accepting an affirmed peer review doctor's opinion, carte blanche, without scrutinizing the report's contents. As plaintiff's counsel cogently argues, "[e]very peer review report is different and requires individual scrutiny to determine whether or not in contains a [sufficient] factual basis and medical rationale." The Court agrees that such scrutiny is necessary and appropriate before it decides whether the burden should be shifted back to the plaintiff to submit contrary expert proof. If the plaintiff can demonstrate, through references to the medical records or otherwise, that the peer review doctor's opinion lacks a sufficient "factual basis" and/or "medical rationale" because it is conclusory, or because it fails to address essential factual issues or is based upon disputed or apparently incorrect facts, the defendant's motion should be denied regardless of whether plaintiff submits expert proof of its own.
In the instant matter, plaintiff's opposition points to such shortcomings in the peer review report. The peer review doctor's opinion rests, in large part, upon his factual assumption that the medical records failed to document "persistent radicular symptoms". However, as plaintiff's counsel demonstrates, this assertion is contradicted by the very medical records that defendant's expert reviewed.
Notably, the reports of claimant's treating physicians document, over a course of nearly a month, the persistence of radiating pain in claimant's neck and back. Several weeks after claimant's accident, his family physician, Dr. Grigoran, performed a physical examination which resulted in an assessment of "cervical radiculopothy." Upon Dr. Grigoran's referral to a neurologist, Dr. Kahn, claimant was examined again. Despite having undergone weeks of conservative treatment, claimant was still suffering from "frequent" neck and back pain, accompanied by "numbness". A cervical compression test was "positive" for "radicular symptomology." So, too, the results of a Spurling test were reported as "positive".
In light of theses symptoms and test results, Dr. Kahn's diagnosis included findings of "Cervical/Lumbar radiculopothy," and "Cervical radiculitis." His recommendations included the performance of EMG/NCS tests of the cervical/lumbar spine and upper/lower extremities "to elucidate the degree and location of compression on existing nerve roots and peripheral nerves." Not surprisingly, the electro-diagnostic test results revealed "an abnormal study, consistent with a left C5-6 and right L4-5 and L5-S1 radiculopothy."
When such test results are viewed together with claimant's well documented medical history, it is difficult to accept, at face value, the peer review doctor's factual assumption that he found no evidence of "persistent radicular symptoms" which may have justified Dr. Kahn's decision to recommend electro-diagnostic testing. Moreover, in the peer doctor's description of the accepted standards and protocols for electro-diagnostic testing, defendant's peer review doctor acknowledges that such tests may be medically appropriate for patients whose radicular symptoms "are persistent or unresponsive to initial conservative treatments."
In the face of the medical record evidence, cited above, and the absence of proof of a more definitive, clear cut standard for prescribing electro-diagnostic tests, plaintiff's opposition makes a convincing case that defendant's moving papers fail to meet its burden. To a significant extent, the peer review doctor's opinion rests upon conclusory assumptions and disputed or incorrect facts. Consequently, such an opinion, by itself, is insufficient to prove defendant's entitlement to judgment as a matter of law on its lack of medical necessity defense. In these circumstances, the absence of opposing expert proof from plaintiff is immaterial.
Insurance Law § 5105(b) requires that mandatory arbitration be used to resolve all disputes between insurers as to their responsibility for the payment of first-party benefits. 11 NYCRR 65-3.12(b) provides that "[i]f a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given . . . shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part."
Defendant argues that its denial of benefits raised an issue of coverage, rather than of payment, because it was not "otherwise  liable" for the payment of first-party benefits. However, 11 NYCRR 65-4.11(a)(6) provides that "any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority [of] payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section." Thus, as "the first insurer to whom notice of claim [was] given" (11 NYCRR 65-3.12[b]), defendant was responsible or obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues of priority or source of payment. By denying plaintiff's claim on the stated ground that no-fault benefits were payable by another insurer (Fidelity and Guaranty Insurance Co.), defendant raised an issue as to which insurer was obligated to pay first-party [*2]benefits, which "[c]learly . . . is an inter-company dispute subject to mandatory arbitration" (see Paramount Ins. Co. v Miccio, 169 AD2d 761, 763 , lv denied 78 NY2d 851 ; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 ).
The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020).
In opposition to the plaintiff's motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff's claim. The defendant's denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375). Thus, the defendant also failed to make a prima facie showing that it timely denied the claim in support of its cross motion for summary judgment dismissing the complaint.
Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286). Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint and should have denied the defendant's cross motion for summary judgment dismissing the complaint.
In the case at bar, defendant proffered no reasonable excuse as to why it served its answer late. Defendant merely asserted that, due to a clerical error, the caption of the answer it ultimately served was incorrect. However, the purported document, which listed the wrong assignor, could not properly be characterized as an answer to the complaint. Moreover, the foregoing error did not establish an excuse for the untimely service of the answer. According to a paralegal employed by defendant's law firm, the answer was served on August 2, 2007, almost four months after the default judgment had been entered. In view of the lack of a reasonable excuse for defendant's default, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 ). Accordingly, as the Civil Court did not improvidently exercise its discretion in denying defendant's motion, the order is affirmed.
Pesce, P.J., and Weston, J., concur.
§ 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Further, contrary to the Civil Court's determination, there is no requirement that EUO scheduling letters conspicuously highlight the time and place of the EUO by use of, among other things, a bold or larger font (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted. In light of the foregoing, we reach no other issue.
Defendant's proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator's affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 ) so as to warrant the granting of summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.
The affidavits submitted by defendant in support of its motion failed to establish that the IME scheduling letters had been mailed in accordance with Crossland's standard office practices and procedures or that the affiants had personally mailed the scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied defendant's motion for summary judgment.
However, plaintiffs were not entitled to summary judgment upon their cross motion because the affidavit submitted by plaintiffs' supervisor of medical billing pertained to the claims at issue in another action, rather than the claims at issue in this action (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 ; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiffs did not establish their prima facie case (see Zuckerman v City of New York, 49 NY2d 557 ).
The papers submitted in support of defendant's cross motion for summary judgment included two peer review reports in admissible form, both of which set forth a factual basis and medical rationale for the peer reviewers' opinions that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant's cross motion, plaintiff submitted an affirmation of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope [*2]Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the existence of a triable issue of fact as to the medical necessity of the medical supplies in question, defendant's cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 ).


When you sell a house in Indiana, you are required to complete a sales disclosure form. See Ind. Code § 32-21-5-1(a); Ind. Code § 32-21-5-10(a) (“An owner must complete and sign a disclosure form and submit the form to a prospective buyer before an offer for the sale of the residential real estate is accepted.”). The sales disclosure form requires the seller to disclose the known condition of the house, including whether there is a defect in the foundation, roof, water/sewer system, among other conditions. Essentially, the law requires you disclose all material, significant defects. Ind. Code § 32-21-5-4 reads, “As used in connection with disclosure forms required by this chapter, ‘defect’ means a condition that would have a significant adverse effect on the value of the property, that would significantly impair the health or safety of future occupants of the property, or that if not repaired, removed, or replaced would significantly shorten or adversely affect the expected normal life of the premises.” The latest version of the form can be found here if you want to check it out.
Undoubtedly, the fact that there is a hole in your living room drywall from a picture you hung and didn’t disclose it, would not constitute a “defect” which you would have to disclose. On the other hand, if you know there is a crack in your foundation or have reason to believe there are termites at the house, that would constitute a “defect” which you would have to disclose. Note: There is a section of the sales disclosure form which allows a seller to add any additional “defect” which the specific form section might not specifically address.
So, what if you knowingly misrepresent or, more likely, unintentionally misrepresent the questions on the form?
The statute is pretty straightforward. As long as you didn’t have actual knowledge that there was a “defect”, you cannot be held liable. However, if it was a “defect” within your actual knowledge, then you may be liable. In Johnson v. Wysocki, 990 N.E.2d 456, 466 (Ind. 2013), the Indiana Supreme Court held that the seller may be liable for fraudulent misrepresentations made on the disclosure form only if he or she had actual knowledge that the representation was false at the time he or she completed the form. (emphasis added). See also Harmon v. Fisher, 56 N.E.3d 95 (Ind. Ct. App. 2016).
The “actual knowledge” standard can be hard to prove in many cases. Actual knowledge may be inferred or shown by circumstantial evidence in the absence of direct evidence or admission of knowledge. See Johnson v. Wysocki, 990 N.E.2d at 466 (citations omitted). “However, that is not the same as a finding that the issues ‘should have been obvious.’ The standard of ‘should have known’ is lower than ‘actual knowledge.’” Id. “[A] showing that an owner failed to disclose a defect of which he should have known is not sufficient.” Boehringer v. Weber, 2 N.E.3d 807, 812 (Ind. Ct. App. 2014) (citing id. at 466-467) (emphasis added).
Therefore, if you are a buyer that has information to believe the seller had actual knowledge of a “defect” which they failed to disclose, then you likely have a case for misrepresentation or fraud against the seller. Likewise, if you are a seller and a buyer is accusing you or suing you for failure to disclose something on the sales disclosure form, you could be liable for the buyer’s damages.
If you are a buyer having issues with the house you just purchased or a seller facing potential disclosure liability, please give us a call at (765) 640-1330 or email Alex Beeman at alex@beemanlawoffice.com. Beeman Law has represented numerous buyers and sellers (and even home inspectors) wrapped up in these situations.


This is a summary of recent legislative and practice developments regarding the Federal Employees’ Compensation Act (FECA) for injured federal workers, FECA attorneys and others who have interest in OWCP claims.
No new legislation affecting FECA has been introduced in the current (113th) Congress, but prior proposals are still actively being discussed on the Hill.
Vocational rehabilitation – can start six months after an injury, even if the employee is not yet considered permanently disabled. Increases maintenance allowance paid to workers in rehab by 50%. Allows OWCP to reimburse employers who hire a previously injured federal worker for up to three years, and allows OWCP to reimburse federal agencies that reemploy injured workers after they suffer a recurrence of disability.
Total disability rates for new injuries (occurring after effective date) payable at 70% of wages for all employees instead of at the current 66-2/3% basic rate or 75% of wages (with dependent).
Total disability rates, for new injuries or periods of disability, reduced from 75% or 66-2/3% of wages to 50% of wages after the employee reaches Social Security retirement age and has been receiving benefits for at least a year.
Schedule award benefits payable at 70% of wages for all employees instead of at 66-2/3% or 75% of wages. All awards to be calculated on the pay rate of a GS-11 step 3 employee regardless of the injured employee’s actual wages. Awards to be paid in a lump sum, and also may be paid while employee is receiving wage-loss benefits.
Schedule awards for disfigurement increased from maximum of $3,500.00 to maximum of $50,000.00, for new injuries, with this maximum adjusted yearly for cost-of-living increases.
Earnings reporting – Requires all disabled claimants receiving benefits for total or partial disability to report earnings, but eliminates this requirement, and the requirement to participate in vocational rehabilitation, after the employee’s benefits are reduced due to reaching Social Security retirement age.
Death benefits payable at a maximum of 70% of deceased employee’s wages for all dependents, reduced from current 75% maximum. Adds domestic partners as eligible survivors.
Continuation of Pay [COP] to be recouped by OWCP from third party settlements and credited to federal employing agency that paid it – currently COP cannot be recouped. 45-day period of COP increased to 135 days for employees injured in a zone of armed conflict, and COP for those employees is available for both traumatic and occupational disease claims.
Burial expense reimbursement maximum increased from $800.00 to $6,000.00 for new death claims.
Physicians’ assistants and nurse practitioners are added to the list of recognized medical providers.
Election between workers’ comp and retirement – Requires employees who have retired to permanently elect to receive either OWCP benefits or retirement (CSRS or FERS) benefits within a reasonable time after retiring.
Sanctions – Imposes a new sanction (suspension of benefits) against employees who fail to cooperate with OWCP field nurses. Cooperation with such nurses has been voluntary.
Matching of benefits and earnings – Allows new automatic matching of FECA recipients to those receiving earnings per Social Security records to eliminate improper payments.
Chargeback – Allows reimbursement of claims administration expenses to be paid from the Employees’ Compensation Fund, and requires federal agencies for the first time to pay their fair share of these costs back to OWCP.
Amends §8101 to exclude employees of the District of Columbia, who have their own WC law effective 03/03/79.
Amends §§8101(3), 8103(b), and 8121(6) to provide that the services of Physicians’ Assistants or Nurse Practitioners are covered medical services and allow them to certify disability for periods of COP in traumatic injury cases only.
Injuries outside of U. S.
Amends §8102(b) to strike outdated language, and to include injuries from terrorist attacks.
Amends §8107(c)(21) – maximum of $3,500 increased to $50,000 for disfigurement of the head, face or neck, effective for injuries starting 3 years prior to date of enactment. Adds language adjusting this amount yearly using the existing FECA cost of living adjustment in 5 U.S.C. §8146a.
Amends §8116 by adding section (e) to allow USDOL to require claimants to consent to release of SSA earnings records to OWCP as a condition of receiving FECA benefits.
Amends §8118 to expand continuation of pay from 45 days to up to 135 days to ease benefit delivery for employees injured in a zone of armed conflict – applies to both traumatic and occupational injuries. Also increases time to claim COP from 30 to 45 days for these employees.
Amends §§8131 and 8132 to allow COP cost to be recouped from Claimant’s recovery from liable third party by DOL, credited to employing agency that paid it. Eliminates double recovery of wares.
Amends §8134 – Increases maximum benefit from $800 to $6,000 for burial expenses (applies to death claims after enactment) and adds language adjusting this amount yearly using the existing FECA cost of living adjustment in 5 U.S.C. §8146a.
Amends §8147 to allow for payment of administrative expenses from the fund to require agencies to pay their share of costs associated in administering the statute.
The WILG FECA Section supported this bill, as did several federal employee unions. This bill was passed by the full House on November 29, 2011, but the Senate never voted on it. It has not yet been re-introduced in the current session of Congress.
WILG Comment: This would apply to both temporary and permanent disabilities, which would result in temporary total disability (TTD) and temporary partial disability (TPD) benefits substantially less than the typical 2/3 benefit provided by most state workers’ compensation systems. Most injured Postal workers struggle to survive on comp as it does not include overtime in lost wage computations.
WILG Comment: This idea been criticized by several unions because injured workers who have dependents generally have more living expenses and need the extra benefit level. To reduce TTD to only 50% of wages would work immediate hardship on any injured employee and especially on those with dependents, and would probably lead many to return to work before it is medically indicated.
WILG Comments: Requiring the approval of the Postmaster General would reduce even further the number of doctors willing to treat an injured Postal worker – making treatment harder to obtain and delaying treatment, resulting in more permanent and long term disabilities and adding an adversarial component to federal workers’ comp. Claimants are already unable to find medical care because most doctors will not touch a federal workers compensation claim due to delays in payment and what doctors perceive as excessive requests for paperwork. Providers are already required to enroll with ACS (OWCP’s automated bill-pay service). One need only do a search of enrolled providers in any given area to see just how few doctors will take a FECA case already. OWCP already has the authority to oversee medical billing and approves or denies services regularly. Further, OWCP determines whether a claimant needs continuing medical care. The Second Opinion process and independent medical (“referee”) examination processes are already in place to check treating physicians’ treatment plans. There are already significant delays in approving necessary surgeries and treatments. which result in more permanent, long-term damage. Adding another approval element would simply result in more unnecessary delays. Allowing the employer (USPS) to be the “fox in the henhouse” for authorizing medical care is a horrible idea anyway – this is a traditional function of OWCP and not the employer.
WILG Comment: Claimants are already required to sign a release of SSA info to OWCP, so it’s unclear why the same information should also be sent to the Postal Service when USPS has access to the OWCP file already.
Limits payments to 104 weeks total for partial and/or total disability, unless per regulation DOL credits a treating physician that an extension is neces-sary or the disabil-ity is permanent.
WILG Comment: While the right to payments continues until disability has resolved, OWCP already requires constant certifications from the treating physician that the disability continues. OWCP also schedules periodic exams with second opinion examiners to determine if disability continues and routinely overrules treating physicians in that regard. The determination of whether a disability is “permanent” is (and must necessarily be) done on a case-by-case basis and is always subject to review by OWCP, so cutting off benefits willy-nilly at 104 weeks would be cruel and unjustified in any serious injury/disability case. This would be especially true if treating physicians all have to be “approved” by the Postal Service, thus leaving this crucial decision up to the employer.
No further action was taken on this bill, and it has not been re-introduced in the current Congress.
This bill was introduced in the Senate on November 1, 2011 by Senators Lieberman, Collins, Carper, and Brown as the “21st Century Postal Service Act of 2011”. It had a Section III regarding FECA reform that included many provisions of FIERA which WILG opposed (see below). The bill was marked up and passed out of committee on 11/09/11, and was passed by the full Senate on 04/25/12. The House never voted on it. It has not yet been re-introduced in the current Congress.
Would reduce the comp rate to 50% of wages for employees on total disability (and to 50% of wage-earning capacity loss for employees receiving partial disability) who have reached SSA retirement age. Would not apply to employees who have already reached retirement age before enactment. Provides a transition period of three years after the law goes into effect during which time employees who reach retirement age will receive basic compensation. Does not apply to employees who have an “exempt disability” medical condition, which is an injury that (1) requires attendant care, (2) fits the §8105 definition for permanent disability (loss of both arms, both eyes, etc.), or (3) was on total disability under FECA for the 3-year period before enactment, or for a 3-year period ending within 3 years after enactment.
OPPOSE – Reduces by up to 1/3 (from 75% or 66-2/3% of wage loss to 50% of wage loss) the compensation for employees who have reached retirement age. Given that people (including members of the House and Senate and their staffs) are working well past the traditional retirement age, this is unfair. Unclear whether a disabled employee would be considered “exempt” from this reduction if (A) his/her benefit is reduced from total to partial during either of the 3-year periods; (B) benefits were reduced or terminated, that action is then challenged, and total disability benefits are later reinstated. Also reduces benefits for employees who suffer a recurrence of a disability, or who become disabled after enactment from a latent condition that stems from a (much) earlier exposure. And see page 3 for better proposal.
Would eliminate the increase in compensation for injured employees with dependents. Would not apply to those with exempt disabilities and would not take effect for 3 years after enactment.
OPPOSE – While the desire for uniformity is understood, there is no reason to simply pick the lesser amount and make that the standard, especially given the economic hardship this would cause. And see page 3 for better proposal.
compensation payments for some employees – on the later date of either when the employee’s compensation has been reduced to 50% (after reaching retirement age), or when his or her entitlement to augmented (75% of wages) compensation was terminated.
OPPOSE – New “annual salary” would result in lower awards for some and higher for others and is no longer defined as the employee’s actual pay rate for post-enactment injuries. New pay rate would dramatically lower awards for top earners such as law enforcement, firefighters and others who receive LEAP pay. All awards would be lower for both pre-and post-enactment injuries to employees with dependents. A good part is that it allows for simultaneous receipt of a SA along with wage-loss comp – but only for some employees. Not clear whether the employee could elect to not receive the SA as a lump sum since it only refers to a lump sum. And see page 3 for better proposal.
Allows voc rehab to start immediately. Would exempt employees who have reached retirement age from participating in voc rehab. Encourages assisted reemployment with the federal government. Noncompliance will result in mandatory benefit reduction.
OPPOSE – Current law already allows benefit forfeiture for non-cooperation with voc rehab. Mandatory benefit reduction would result in unfair decisions where OWCP-hired voc rehab counselor just alleges non-compliance. No opposition to part exempting retirees from voc rehab.
Establishes mandatory second opinion exams six months after comp begins. Requires subsequent second opinions exams every 3 years.
OPPOSE – Why do this when OWCP already reviews medical reports from treating physicians? OWCP already requires medicals on a more frequent basis than once every 3 years. No reason to make this mandatory. No other area of law discounts treating physicians’ opinions like this program does, and this would make that worse. At minimum, the poor quality and bias of second opinion examiners should be addressed before this is implemented.
3 day waiting period before eligibility for COP.
Switching between FERS and FECA still revocable, but not for a period during which the employee was entitled to both FECA and FERS, or was paid FERS even though entitled to FECA. Does not prohibit switching back.
OPPOSE – Employees need to be able to switch to FERS while eligible for unreduced FECA to get SA for those who have not reached retirement age. OWCP can still terminate benefits even if someone is receiving FERS money.
Imposes sanctions for noncooperation with field nurses.
OPPOSE – Absolutely do not need another person with the authority to effectively terminate benefits. Would need to issue rules for what a nurse is allowed to do in terms of interacting with doctors to avoid interference with doctor/patient relationship.
Increases funeral expenses from $800 to $6,000. Increases the amount for injuries to the face, head and neck from $3500 to $50,000.
BETTER PROPOSAL RE §§302, 303, 304 – Make any changes to these benefits applicable only to injuries occurring after enactment. This is easier to understand and administer, and allows employees to purchase supplemental insurance to cover the loss in future benefits.
On 12/07/12 GAO issued a report entitled “Federal Employees Compensation Act: Effects of Proposed Changes on Partial Disability Beneficiaries Depend on Employment After Injury”, Number GAO-13-143R. This report was requested so the members of Congress could assess the effects GAO anticipated from two proposed reforms: (1) reducing the total disability rate to 66-2/3, and (2) changing FECA benefits for permanently partially disabled employees, particularly those at retirement age. Its conclusions were: (1) reduction of the total disability rate to 2/3 (or to 70% for all injured workers, covered by an earlier report) would reduce the median wage replacement rate accomplished by FECA, especially for those injured at a younger age, and would also reduce the relative equality in current benefit rates for employees with and without dependents, and (2) beneficiaries with constructed (as opposed to actual) earnings after onset of disability had substantially lower total income (FECA benefits plus any earnings) than those who were re-employed post-injury, and lower-wage beneficiaries would suffer greater reductions in FECA benefits than higher-wage beneficiaries.
WILG continues to monitor legislative proposals affecting FECA.
We are seeing quite a few cases where delays at OPM are substantially delaying receipt of FECA benefits. This often happens when a FECA claim is denied, the employee challenges the denial and in the meantime applies for and is granted OPM disability retirement benefits. When the FECA claim is later won and retroactive benefits are claimed, OWCP refuses to pay the back pay until it receives official notice from OPM of the exact amount of retirement benefits paid during the retroactive period. The OPM and OWCP benefits are coordinated, so there is a reason for OWCP to obtain this information before paying large retroactive amounts of wage loss benefits. But the delays are now becoming more and more excessive. OPM has a tremendous backlog of work processing disability retirement applications, and does not prioritize such information requests from OWCP – even though the OWCP benefits once paid do not include any interest for the injured worker.
As of February 2011, the Board has a new Chairman and Chief Judge, Richard J. Daschbach, who by all accounts is actively attempting to ensure that the Board issue fair decisions on FECA appeals. In particular, the Board now appears to be very focused on “process” – that is, ensuring that the OWCP district offices follow the OWCP Procedure Manual and any Bulletins or Circulars issued by the OWCP national office. While arguments regarding process have often been favorably entertained by ECAB in the past, recent decisions regarding the United States Postal Service’s (USPS) National Reassessment Process (NRP), and several decisions with regard to the selection of “referee” examiners or independent medical examiners (IMEs), have now made it clear that the ECAB will not tolerate any deviation from established procedures.
The NRP was a controversial program instituted by the USPS that effectively laid off thousands of limited duty (industrially-injured) employees finding that the positions they occupied were not operationally necessary. The NRP is currently being challenged in multiple class action suits, including McConnell v. USPS, EEOC Case No. 520-2008-00053X. One of the effects of the NRP was that thousands of employees who had work related injuries and who were working limited duty positions, sometimes for decades, suddenly found themselves sent home with “no work available”. OWCP issued a bulletin (FECA Bulletin 09-05) on 08/18/09 which established specific procedures for claims examiners (CEs) to follow in determining whether employees fired from their limited duty jobs would be entitled to wage loss compensation. Previous decisions from ECAB had established that an employee who had not had a formal wage earning capacity determination (LWEC) made in his or her claim, under 5 USC §8115, would likely be entitled to compensation as a result of their limited duty position being withdrawn. Those who did have formal LWECs in place, however, would have to prove that the LWEC was established in error or that their medical condition had become materially worse. The primary argument advanced in many NRP appeals heard by the Board was that the initial LWEC decision was issued in error due to the claim that the light duty position was a “makeshift” or “odd-lot” position, consisting of make-work tasks banded together for the injured worker, of the type not found in the general workforce and therefore did not accurately represent the injured worker’s wage earning capacity.
Rather than rule on the merits in many of these appeals, the Board began issuing decisions, such as that in H.N. and USPS, ECAB Docket No. 11-155 (September 24, 2012), finding that the district offices had not followed the proper procedure for determining if an employee was entitled to wage loss compensation. Specifically, FECA Bulletin No. 09-05 requires the responsible claims examiner to inquire with the USPS as to whether the employee was occupying a makeshift or odd lot position. In some cases that our office has been involved with, the employer has responded that the position was makeshift or odd lot, which has led to our client’s LWEC being overturned. In other cases, however, the employer has stated the positions were not makeshift, and compensation has been denied. This will ultimately lead to nearly the exact same appeal being filed with the ECAB in cases where the employer has stated the job was not makeshift or odd lot. The result being a sometimes year long delay before the substance of the injured worker’s appeal is heard by the Board.
The second area in which of the Board’s focus on process is apparent is selection of independent medical examiners. Under 5 U.S.C. §8123, “If there is disagreement between the physician making the examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make an examination.” The third physician is appointed to resolve the conflict between the claimant’s treating physician and OWCP’s second opinion examiner. The opinion of the referee physician is entitled to special weight, and generally will determine the outcome of the claim. Thus, it is essential that the referee physician is in fact a neutral physician. Claimant advocates have long complained that OWCP has utilized the same referee physicians over and over, essentially calling into question the neutrality of the referees selected. For years, ECAB essentially took OWCP’s word for it that referee physicians were selected according to a strict rotational basis based on a claimant’s zip code.
Recently, and with some strongly worded decisions in 2012 (see M.M. and U.S. Postal Service, ECAB Docket No. 12-442 (August 28, 2012), L.E. and Dept. of Defense, ECAB Docket No. 12-1113 (November 13, 2012), and P.B. and SSA, ECAB Docket No. 12-1393 (December 18, 2012), the Board has required OWCP to provide proof that its referee was selected fairly ,in the form of documentation to prove this including an explanation of why physicians who were located closer to the claimant were not utilized.
As a result of the Board’s crackdown on the referee selection process, OWCP has now begun including lists of bypassed physicians in claimant’s files. OWCP, however, is now utilizing its own iFECS software program to select from a list of physicians – as opposed to physician lists available to the public – and it is not clear how it is populating this list. Regardless, it is a positive step that the Board is requiring strict adherence to the procedure for selecting a neutral third party physician.
Amends §8101 to exclude D.C employees, who have their own WC law effective 03/03/79.
employing agency that paid it. Eliminates double recovery of wares.
On Wednesday July 10, 2013 the Subcommittee on Workforce Protections of the Education & the Workforce Committee – the same House Committee that passed HR 2465 – held a hearing on possible FECA reform in which these same ideas and others were discussed, as was the possibility of re-introducing HR 2465 in this Congress. Many of the proposed changes listed above are long overdue.
At the hearing, other USDOL-backed changes first proposed in 2011 were also discussed. These other changes, however, are far more controversial, leading lawmakers in 2012 to ask the Government Accountability Office (GAO) for its opinion about them. These changes included reducing benefits from 3/4 or 2/3 of salary to 1/2 of salary when the employee reaches full Social Security retirement age, computing schedule award benefits for all employees on a single pay rate, eliminating “augmented” compensation (3/4 rate) for employees with dependents and paying all disability benefits at a 70% rate, etc. In three reports (GAO-13-108, GAO-13-142R, and GAO-13-143R) issued in late 2012, GAO cautioned that such changes in the law would substantially and disproportionately disadvantage certain employees and save little in overall program costs.
As of this writing, no new legislation concerning FECA reform has been introduced.
In May 2013, a group of federal disability attorneys belonging to the OWCP Litigation Group met in Washington, D.C. for a two day seminar on federal workers compensation. Dan Goodkin of the firm Steven E. Brown, PLC presented on two topics, Strategies for Emotional or Stress Claims in the Federal Workplace and a second lecture on Interactions Between FECA Claims and EEO Complaints/ MSPB Appeals. The conference was attended by many of the most well known and respected federal disability lawyers in the country and included a discussion panel with the Chief Judge of the Employees’ Compensation Appeals Board.
Emotional claims, often referred to as stress claims, under the federal employees’ compensation act can often be very complicated and difficult cases to win. Many federal disability attorneys avoid stress claims or claims for an emotional condition as they tend to be contentious, difficult claims to win. Federal agencies are likely to challenge any claim that alleges wrongdoing on the part of the agency or its employees. As anyone who has searched for an attorney who handles FECA claims knows, there are very few federal disability lawyers and even fewer who will represent claimants in stress claims.
Many things that occur in the federal workplace are not covered under FECA. For example, administrative actions, such as disciplinary actions, monitoring employee behavior and bad performance appraisals are not covered under FECA unless the claimant can prove error or abuse on the part of the agency. This is difficult as the burden is on the claimant to prove that the action was erroneous or abusive by providing evidence that consists of more than the claimant’s allegation. Typically, OWCP will look to see if another administrative body, such as the Equal Employment Opportunity Commission (EEOC) or the Merit Systems Protection Board has entered a finding of discrimination or has overturned the disciplinary action, or if the administrative action was found to have violated a collective bargaining agreement as the result of a union grievance. Absent an administrative finding of wrongdoing, many stress or emotional claims fail if the basis of the claim was an administrative activity.
An outline of activities in the workplace that are covered under FECA, and those that are not, is included below for download.


Chapter 5 application procedure, deadlines, etc.
§ 1. The notice includes the higher education referred to in annex 1.
§ 2. Access to higher education, see. section 1 requires that the applicant meets the entry requirements, which are set out in annex 1.
(2). Entry requirements shall be fixed by the Ministry of education. Changes of these entry requirements published on the Ministry's entrance portal www.optagelse.dk. The tightening will be notified at least 2 years before they take effect.
5) Faroese, Greenland's upper secondary Education Baccalaureate (GU-exam), Faroese higher preparatory exam, Faroese higher commercial examination, the vocational upper secondary education to higher commercial examination from Greenland, Faroese higher technical exam, the vocational upper secondary education to higher technical exam from Greenland, graduated from the Duborg-skolen and from a. p. Møller School.
8) Foreign exam, etc., which can be equated to a Danish upper secondary school exam, or as the candidate institution has assessed as comparable to a Danish upper secondary school exam.
(2). Evaluation of foreign degrees, see. (1). 8, carried out in accordance with the rules of the law on the evaluation of foreign educational qualifications.
§ 4. When the access requirement in annex 1 is set to a "relevant professional training" or a "relevant professional college education", the institution shall decide in each case whether access requirements have been met.
(2). When the access requirement in annex 1 is set to a number of secondary examination course, the institution for applicants with foreign educational qualifications in each case to assess whether access requirements have been met. The institution shall take as its starting point in the assessment of all foreign examinations carried out in accordance with the rules of the law on the evaluation of foreign educational qualifications, see. § 3, paragraph 2.
§ 5. When a subject is required at a certain level, the applicant for the secondary education, listed in § 3 (1) (8). 1-4 and 6, have achieved at least grade 02 in the subject on this or a higher level. There are several characters in the subject, is the requirement to be fulfilled if the weighted average according to the rules on that training is not less than 2.0. The requirement cannot be met by rounding up. Of the courses listed in section 3 (1) (8). 5 and 7-8, the applicant shall have fulfilled the bestågrænsen in accordance with the rules of scoring in that training.
§ 6. The institution may require that the qualifying education must be carried out with a particular exam averages as a minimum, or that in the disciplines that are required at a certain level, is passed, see. section 5, with a minimum rating which is higher than 02. The institution's decision fixing the character requirements and amendment thereof shall be notified to the Ministry of education, which publishes the requirement at the Ministry's entrance portal, www.optagelse.dk. Determination of the nature of the requirement and the tightening of this must be announced at least 2 years before they take effect.
(2). The institution may require foreign applicants or applicants with foreign access basis no later than 5. July in the application year has passed the study test of Danish or documented equivalent proficiency in Danish.
§ 7. The institution may require that applicants within the time laid down for the application deadline, see. However, section 8, shall demonstrate proficiency in English, corresponding to at least English B-level, if the training or substantial portions thereof offered in English. The institution may provide that candidates must pass a specially organised trial.
(2). Requirements for English proficiency, including when these must be documented, and what are the requirements to foreign samples, can be contacted on the institution's website, and first to the Ministry of education be oriented accordingly. Determination of requirements for English proficiency and tightening thereof must be announced at least 2 years before they take effect.
§ 8. The educational institution may accept applicants on a higher education, although the entry requirements are not met by the application deadline. Recording must be made conditional on the applicant after the institution's arrangements, before the start of study or as soon as possible thereafter, satisfy the entry requirements or complements to a level which, according to the institution's decision can be equated with access requirements.
(2). An institution may in case of expected significant access restriction on an education provide for the conditional inclusion after paragraph 1 cannot take place. The institution's decision must be published on the institution's website on the Internet for at least 1 year before it enters into force, and the Ministry of education must be informed thereof in advance.
§ 9. An applicant has passed several qualifying courses, the first successful training can only be used as a basis for recording, when exam average either forms part of the access requirement or be used as a selection criterion.
(2). The institution may grant a derogation from paragraph 1, if there are exceptional circumstances.
§ 10. The institution shall allow applicants to apply for admission to a higher education on a basis other than the stipulated entry requirements, if the applicant after a real competence assessment is estimated to have professional skills that can be equated with them, and the institution determines that the applicant will be able to carry out the training.
(2). Authorisation under paragraph 1, without prejudice to article. § 8, subject to the applicant within the time fixed for the introductory phase, consists a skill test or through some other form of individual assessment documents the necessary qualifications.
(3). Decision in accordance with paragraphs 1 and 2 shall apply only to the education by the educational institution in question.
§ 11. The institution shall decide on the admission of the individual applicant.
§ 12. The institution shall determine, in accordance with article 3. (2) how many candidates can be recorded on the individual higher education, unless the Ministry of education has set an annual maximum recording capacity.
(2). On education with free record establishes the institution of an absorption capacity, which ensures satisfactory education.
§ 13. Applicants who have completed a master's degree, may be admitted if there are seats available, or if after the institution's assessment in the absence of exceptional circumstances. The same applies to applicants who twice previously enrolled at a higher education without having acquired the final examination.
§ 14. The number of training places, see. section 12 can be divided in quota 1 and quota 2. Quota 1 can be broken down into quota 1a and 1b. Surplus places in the quota 2, see. § 18, carried forward to the quota 1.
(2). For courses offered in English, can be fixed a quota 3 for applicants in need of a short-term residence permit for temporary stay for training, see. § 19.
(3). The Ministry of education shall determine each year the quota size of the basic regulation. paragraph 1 and possibly. (2) including any breakdown in quota 1a and 1b quota, on the recommendation of the institution.
(4). The Ministry may authorise an institution shall lay down the detailed distribution of seats between quota 1a and 1b.
(5). The Ministry may authorise an institution uses other recording systems than the quota system.
(6). The institution publishes on the institution's website on the Internet the prescribed allocation of training seats in accordance with paragraphs 1 to 4, and a possibly. the recording system referred to in paragraph 5.
§ 15. Education jobs in quota 1a assigned after dropping recording quotient, see. (2) applicants with upper secondary education, see. § 3 (1) (8). 1-8.
(2). Optagelseskvotienten are exam average according to the proof of the upper-secondary education, adjusted in accordance with the rules laid down in section 16, or average of a converted foreign exam exam, see. However, § 29.
(3). If it is not possible to record all applicants with the same recording quotient, happens the selection by the drawing of lots carried out by the coordinating secretariat, in accordance with article 3. notice of procedure for coordination of educational institutions admission of applicants for secondary education and higher education, about signing up to 10. class and on the communication to the Youth guidance (procedure notice).
§ 16. An applicant with a qualifying education, see. § 3 (1) (8). 1-4, which has been completed up to 2 years before the year of application of the basic regulation. However, paragraph 4, get aligned its exam averages, see. (3) if it is intended to be used as a selection criterion, see. § 15.
(2). The time of completion of the upper secondary education is the date of issue of the diploma. If the applicant has passed several secondary school exams, the first successful exam can only be used as the basis for the adjustment in accordance with paragraph 1.
(3). Adjustment of the examination under paragraph 1, shall be carried out by the average multiplying it achieved exam averages, see. section 29, with 1.08. The average is calculated with 1 decimal place.
5) Care of affiliated, which is disabled, seriously ill or dying.
(5). Extension of time pursuant to paragraph 4 shall be granted with the entire application year. An applicant may, up to a maximum combined get 4 year extension. It is the responsibility of the applicant for the educational institution to prove that the condition for extension have been met.
(6). An applicant with a foreign upper secondary education, see. § 3 (1) (8). 5, 7 and 8, get when the result can be converted into a recording rate, adjusted the quotient if it is to be used as a selection criterion, according to the rules laid down in paragraphs 1 to 5. An applicant, who can decide the time for the completion of the upper secondary education, only get adjusted his diploma grade point average if the completed instruction and associated tests are completed within a period of time corresponding to the set or normal duration for that training. It is the responsibility of the applicant for the educational institution to prove that the condition of alignment are met.
§ 17. Training places in the quota is allocated on a declining recording quotient 1b candidates alone due to access restriction cannot be included in the quota 1a.
1) For applicants with a high school education under section 3 (1) (8). 1, included Danish, a further subjects at A-level, English as well as study the guidelines project.
2) For applicants with an upper secondary education under section 3 (1) (8). 2, included Danish, English, mathematics, as well as the major writing task.
3) For applicants with a high school education under section 3 (1) (8). 3, included Danish, a further subjects at A-level, English as well as study the guidelines project.
4) For applicants with a high school education under section 3 (1) (8). 4, included Danish, mathematics, English and technology.
(3). For applicants with several subjects at A-level, in addition to Danish and possibly English, see. (2). 1 and 3, included the character from the A-level subjects., which has achieved the highest rating. For applicants who have subjects at a higher level than it required in that upper-secondary education, included the nature of the subject at the higher level, without prejudice. (2). 1, 2 and 4.
(4). An applicant with upper secondary education, see. § 3 (1) (8). 5, 7 and 8, get when the result can be converted into a recording quotient, corrected the quotient if it is to be used as a selection criterion, according to the rules laid down in paragraph 2. The requirement of Danish may be replaced by the applicant's mother tongue at A-level or equivalent level. It is the responsibility of the applicant to the institution to demonstrate that the condition for correction are met.
(5). If it is not possible to record all applicants with the same recording quotient, happens the selection by the drawing of lots carried out by the coordinating secretariat, in accordance with article 3. procedure notice.
1) applicants who meet the entry requirements for training, but who do not have sufficient admission grade point average to qualify for inclusion in quota 1a or 1b.
2) applicants who do not have an upper secondary school education, but satisfy other admission requirements, see. Annex 1 to that education.
3) applicants who do not meet the entry requirements but who have skills that can be equated with this regulation. § 10.
4) Applicants with a foreign entrance examination, which cannot be converted into a recording quotient in quota 1.
(2). Education jobs in quota 2 is assigned after a concrete assessment of the candidates.
(3). If the institution beyond the qualifying exam leave activities be included in the assessment of the applicant's qualifications, there shall be included the activities of a total duration of 12 months.
(4). Used commercial work as a criterion, the work earned as part of the contract with the defense, could be included with the whole of the contract period, notwithstanding the fact that the contract expire after the application deadline, however at the latest until the start of study. In a similar way included conscript service.
(5). The institution publishes on its website on the Internet, what objective criteria that may be included in the assessment of each candidate. Significant changes to the criteria must be announced with at least 2 years.
§ 19. Educational sites, see. § 14 (2), shall be awarded on the basis of a specific assessment of the candidates according to criteria provided by the educational institution. The educational institution shall publish in English on its website, what objective professional criteria which, together with the prescribed entry requirements, see. Annex 1, part of the assessment of each candidate. Significant tightening of criteria must be announced with at least 1 year.
(2). Applicants who meet the conditions laid down in article 14, paragraph 2, recorded outside the quota 1 and 2.
§ 20. The institution shall determine the capacity, in addition to recording a number of waiting list seats, which can be searched simultaneously with the application for ordinary membership. Applicants to the waitlist seats shall be entered in a priority waiting list in accordance with the same criteria as at the regular admission.
(2). The right to education space will lapse, if the applicant is on the waiting list have not accepted offers of training space within a period laid down by the institution. The applicant has not received any offer of admission by the deadline, it will change to a commitment to recording square waiting list within the following year.
(3). No matter that there is obtained the commitment of recording, are submitted there on new application the following year.
(4). However, it is a condition for admission to the applicant not later than the closing date meets the specific admission requirements and requirements for certain minimum grades in individual subjects who apply for training that year, see. sections 5 and 6 and § 8.
§ 21. Application for admission is done digitally via the Ministry entrance portal at www.optagelse.dk or manually by using the forms on paper.
(3). The applicant sends the application form and documentation for access to the base or they sought educational institutions as well as the priority schedule for the highest priority institution, without prejudice. procedure notice. Documentation for access basis must be forwarded, if the applicant has not received diploma or similar before the expiry of the deadline referred to in article 6. § 22.
1) For applicants who are subject to section 14, paragraph 2, the institution shall determine the application deadline, which may not be later than 15. March kl. 12.00.
2) 15. March kl. 12.00 for candidates who, in accordance with article 3. § 18, seeking admission via quota 2, as well as for applicants with foreign upper secondary educations, see. § 3 (1) (8). 7 and 8.
3) 15. March kl. 12.00 for applicants to education, where as part of entry requirements, see. Annex 1, part a audition, recording a conversation or similar.
4) 5. July 23:00. 12.00 for applicants seeking admission through quota 1.
5) By educational institutions that do not record after the quota system, is the deadline for the 15. March kl. 12 noon or 5. July 23:00. 12.00.
(2). The institution shall, not later than 30 June 2005. July give the candidates can be accepted by the institution, offer of a training space. Applicants who are subject to section 14, paragraph 2, should, however, be notified of admission or refusal no later than the 1. June. The applicant shall confirm the offer within a period laid down by the institution. Otherwise, the offer will lapse. The educational institution shall notify the coordinating secretariat, not later than the 15. June, who have been admitted under section 14(2).
(3). The coordinating secretariat shall, subject to paragraph 2. procedure the notice, not later than 30 June. July on behalf of institutions, give notice to the applicants who cannot be absorbed by any of the searched courses. At the same time, the coordinating secretariat to include an overview of courses, where there are seats available.
(4). The institution may in exceptional cases, dispense a small overrun of the deadline referred to in paragraph 1.
2) Shorter courses of study with a view to merit in other training.
3) visiting students in General.
(2). The institution may only in exceptional cases, allow a student to be enrolled by multiple full-time education at the same time.
(3). Checking can take place at any time, without prejudice. However, Chapter 7, and by several Studio startup time after the institution's rules on the distribution of students.
(4). Checking at a later stage of education is subject to the condition that the institution has free space.
(5). By checking the student will be subject to the rights and obligations deriving from the rules that apply to students on that education by the institution concerned.
(6). The institution may lay down detailed rules on enrolment.
3) not be able to complete the training as a result of the rules for that particular training or in accordance with rules laid down under section 25 (1).
(2). Where enrolment is terminated without prejudice. (1). 2 and 3, the institution can allow the person concerned to seek admission to the new regulation. However, section 13, if the institution on the basis of a specific technical assessment finds that his or her opportunities to implement training is significantly improved, or if the training content is substantially changed.
§ 25. The institution may lay down rules to the effect that the termination of enrolment for students who have not been Studio active in a continuous period of at least 2 years. The rules specify which requirements to be Studio asset.
(2). The shell of the institution's rules indicate that the institution may exempt from Studio activity requirement, if there are exceptional circumstances.
(3). Rules, see. paragraph 1 shall be published on the institution's website.
section 26. Students can get a leave of absence from a training in accordance with the rules laid down by the institution.
(2). Students can in the leave period should not attend classes and tests within the education from which the student has leave of absence.
§ 27. An institution may only in exceptional cases, grant leave to a student who has not yet passed the tests after the 1. academic year, see. However, paragraphs 2 and 3.
(2). Leave shall be communicated to the student, if it is warranted on the grounds of maternity, adoption or call to conscript service.
(3). Leave must be communicated to students, who by contract with the Defense makes himself available for United Nations service, etc., follow the rules of the law on the armed forces ' personnel, law on the home guard, law on the State support of education and the law on military service leave etc.
section 28. Switch to new training on the same or another educational institution is done according to the rules for that particular training or institution, without prejudice. However, paragraph 2.
(2). Migrating to the same education at another educational institution can, unless there are special circumstances, be carried out at the earliest, when the student has passed the tests corresponding to the first year of study at the receiving training.
section 29. Grades and grade point average, see. section 5 and section 6, is set after the 7-point grading scale, see. Notice on the grading scale and the other judgement.
(2). When examining average from the qualifying training, see. § 3 (1) (8). 1-4 and 6, shall be used as the selection criterion, or forms part of the access requirement, used the 7-point grading scale.
(3). Conversion from the 13-point scale for the 7-point grading scale, see. paragraphs 1 and 2, is according to the sales tables in annex 2. The annex shall be published also at the Ministry entrance portal at www.optagelse.dk and at www.ciriusonline.dk.
(4). Conversion in accordance with paragraphs 1 and 2 for applicants with foreign upper secondary educations, see. § 3 (1) (8). 5, 7 and 8, happens when the results can be converted to a 7-point scale, according to the conversion tables that are published on the Ministry entrance portal at www.optagelse.dk and at www.ciriusonline.dk.
(5). Possible adjustment of exam average, see. section 16, shall be carried out after the conversion to the 7-point grading scale.
section 30. At the Danish School of media and journalism in each recording be reserved seating for 2 candidates from the Faroe Islands who have passed the entry requirements for the programme referred to in article 6. Annex 1.
section 31. The Ministry of education may dispense with notice, when it is justified by exceptional circumstances.
section 32. The Ministry of education may provide that the institutions ' communications to the Ministry of education in accordance with the notice must be in electronic form, including determining, in what format and for which addressees of such notification shall be given.
section 33. The educational institution's decisions under this Ordinance may, within a period of 2 weeks from the day the decision is communicated to the complainant, be referred to the Ministry of education, if the complaint concerns the legal issues. The complaint shall be submitted to the educational institution, which shall forward the complaint to the Ministry accompanied by the institution's opinion. The institution gives the complainant the opportunity to, within a period of not less than 1 week to comment on the opinion. Any comments be sent to the Ministry.
§ 34. The notice shall enter into force on the 15. February 2009.
(2). § 16 shall take effect from the recording in 2009, and it applies to applicants who have completed their secondary education in 2007 or later.
section 35. Executive Order No. 96 of 20. February 2008 on access, enrolment and leave, etc. by certain higher education (Ministry of education access Ordinance) shall be repealed.
For an assessment of the below specified upper-secondary-specific admission requirements, please refer to annex 1 to the Decree No. 756 of 9. July 2008 (Merit order), where level classification of subjects from previously existing schemes for secondary education is specified in so far as the subjects were no level indication. The annex can be found at www.optagelse.dk and at Ministry website www.uvm.dk.
With regard to specific requirements for the Danish at the A level noted that the subject "Danish A1, default level" from the International Baccalaureate (IB) is considered to meet the requirement of access "Danish at A level". Furthermore, reference is made to paragraph 6 (2).
The designation of the upper secondary vocational education in the annex are in accordance with the notice on the date of entry into force of the current regulatory framework for the individual vocational training. Access requirement applies in all cases for the general education (step 2). Whether vocational training from previously existing schemes are examples of qualifying depend on a specific assessment.
The English term for the training is inserted in brackets after the Danish name.
In education the student must choose 2 or 3 main subjects, and access to individual major subject assumes that the students in relevant prior secondary subjects according to the 7-point grading scale at least has got a character (represented by sample, as the final character of the position or final grade) on 7 on B-level or 02 at A-level. In Danish, however, required at least 7 at A-level. Alternatively, the inclusion in the study be done on the basis of a real competence assessment.
The applicant's competencies can after a real competence assessment in which fx. enters into a relevant vocational training, which can be equated with a secondary education.
Passing the entrance examination, which are selected on the basis of a reasoned application.
Applicants admitted in the programme "Technical manager offshore"
On the preliminary steps can all be included, as have at least 2 years of relevant professional experience, like to study in the fisheries sector, and in addition either: public school 10. class test in mathematics and the natural learning as well as at least public school graduation test in Danish and English. Other exams on similar or higher level can also give access.
Physics at B level and social studies at B level and either Chemistry at B level or Biotechnology on A level as well as at least 1 year relevant professional experience (preferably within the fishing industry).
With "notice on a grading scale and the other judgement" was introduced in 2005 7-point grading scale. As a consequence, to admission to higher education in Denmark carried out after 7. censured from the recording in 2007.
Admission to higher education is done on the basis of exam average from the applicant's qualifying exams, expressed by the Danish 7-point scale.
Table 1 shows the correlation between characters from the 13-point scale, ETCS-scale and the 7-point grading scale. To the extent that individual characters should be translated, used this immediate translation.
Grade 10 is given for the excellent performance that demonstrates the comprehensive fulfillment of the subject's goals, with some minor deficiencies.
Grade 4 is given for the regular performance, which demonstrates a less degree of fulfillment of the subject's goal, with several major shortcomings.
Nature 02 given for adequate performance which demonstrates the minimally acceptable degree of fulfillment of the subject's goals.
The inadequate performance of the inadequate given the nature 00 performance that does not demonstrate an acceptable level of compliance with the subject's goals.
Nature-3 is given for the totally unacceptable performance.
Using table 2, applicants with exam results from the 13-point scale is merged with applicants with exam results from the 7-point grading scale and prioritized in the correct order when shooting at higher education restricted in quota 1.
Circulation of the characters for "specific admission requirements"
Educational institutions must henceforth specify such requirements in relation to the 7-point grading scale.
Table 3 Sales table for the average of a few subjects and individual subjects with multiple characters.
Then the three average together and shared with three.
If the individual applicant has a combination of characters alone from the 13-point scale to be taken into account in the calculation of whether he or she meets the specific admission requirements, the individual characters from the 13-point scale first translated into the Danish 7-point scale after the regular turnover of individual characters where 8 and 9 on the 13-point scale gets to 7 on 7-point scale and then calculating a simple average.
If the individual applicant has a combination of characters from the 13-point scale and from the 7-point grading scale to be taken into account in the calculation of whether he or she meets the specific admission requirements, the individual characters from the 13-point scale first translated into the Danish 7-point scale after the regular turnover of individual characters where 8 and 9 on the 13-point scale gets to 7 on 7-point scale and then calculating a simple average. (This situation can occur if a diploma issued after the 13-point scale after following via GS is complemented with subjects or levels, where the rating is given according to the Danish 7-point scale).


text:
Volume 36, Issue 4 includes summaries regarding cases from the Caribbean and Central America. Summaries were written during the 2011-2012 academic year by Crystal Coveney, Sarah Frost, Grace Kim, Raya Marinova, Sascha Meisel, and Olivia Scharrer, with assistance from editors Jennifer Barrera, Erika Green, Melissa Kurata, and Shamin Rostami, under the supervision of Chief Articles Editor Laura Ybarra, Volume 34 Editor-in-Cheif Adelaide Scardino Lopez, and Professor Cesare Romano. Amber Bissell, James Chang, Joanna Chen, Amy Choe, Elise Cossart-Daly, Jenna Eyrich, Brian Gabriel, Hayley Garscia, Heather Hassan, Sean Lask, Anna McDonald, Griselda Perez, Monica Rodriguez, Alyssa Rutherford, Justine Schneeweis, Jennifer Toghian, and Chelsea Zwart provided extensive editing and pre-production support for Volume 36, Issue 4 summaries.
Crystal Coveney, Boyce et al. v. Barb., 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Sarah Frost, Baena Ricardo et al. v. Pan., 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Sarah Frost, Fleury et al. v. Haiti, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Sarah Frost, Ibsen Cárdenas and Ibsen Peña v. Bol., 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Sarah Frost, Mayagna (Sumo) Awas Tingni Cmty. v. Nicar., 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Grace Kim, Caesar v. Trin. & Tobago, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Grace Kim, Vélez Loor v. Pan., 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Raya Marinova, Tristán Donoso v. Pan., 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Raya Marinova, Neptune v. Haiti, 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Sascha Meisel, Girls Yean and Bosico v. Dom. Rep., 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Sascha Meisel, Genie Lacayo v. Nicar., 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Olivia Scharrer, Ticona Estrada et al. v. Bol., 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).
Olivia Scharrer, Trujillo Oroza v. Bol., 36 Loy. L.A. Int’l & Comp. L. Rev. (2014).

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In the Matter of Karen A. STONE, Petitioner, v. NEW YORK STATE COMPTROLLER et al., Respondents.
Jonathan I. Edelstein, New York City, for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondents.
Before: ROSE, J.P., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller which denied petitioner's application for accidental disability retirement benefits.
Petitioner, a police officer, was walking backwards up a set of stairs carrying a trundle to a heart attack victim when the ambulance driver assisting her at the other end of the trundle pushed it forward, causing petitioner to lose her balance and fall backwards against an open screen door that gave way, injuring her shoulder. Petitioner's subsequent application for accidental disability retirement benefits was denied by respondent Comptroller on the ground that the incident was not an accident within the meaning of Retirement and Social Security Law § 363. Petitioner thereafter commenced this CPLR article 78 proceeding challenging the Comptroller's determination.
We confirm. Petitioner was engaged in the performance of her regular duties at the time of the incident, and the precipitating event, namely, the hasty or uncoordinated movement of her coworker in carrying the trundle up the stairs, was a risk of the work performed and, under these circumstances, cannot be characterized “as a sudden, fortuitous mischance, unexpected [and] out of the ordinary” ( Matter of Felix v. New York State Comptroller, 28 A.D.3d 993, 994, 813 N.Y.S.2d 267  [internal quotation marks and citations omitted]; see Matter of Stimpson v. Hevesi, 38 A.D.3d 979, 980, 830 N.Y.S.2d 856 ; Matter of Kosilla v. Hevesi, 25 A.D.3d 870, 872, 806 N.Y.S.2d 793  ). The fact that petitioner did not anticipate her coworker's movement does not transform the incident into an accident within the meaning of the Retirement and Social Security Law ( see Matter of Felix v. New York State Comptroller, 28 A.D.3d at 994, 813 N.Y.S.2d 267). Rather, in our view, the injury occurred “ ‘without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question’ ” ( Matter of Kenny v. DiNapoli, 11 N.Y.3d 873, 874, 874 N.Y.S.2d 399, 902 N.E.2d 952 , quoting Matter of Lichtenstein v. Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 N.Y.2d 1010, 1012, 457 N.Y.S.2d 472, 443 N.E.2d 946  ).
Petitioner also argues that, even if the uncoordinated movement of the coworker is an inherent risk of employment, the screen door giving way is an unexpected event akin to the step in the pothole that was considered accidental in Matter of Pratt v. Regan, 68 N.Y.2d 746, 747, 506 N.Y.S.2d 328, 497 N.E.2d 695 . We are not persuaded. Petitioner, who bore the burden of proving that the injury was accidental ( see Matter of Kempkes v. DiNapoli, 81 A.D.3d 1071, 1072, 916 N.Y.S.2d 338  ), did not present any evidence at the hearing that the screen door was hazardous, defective or a cause of injury unrelated to the ordinary risks of the job of carrying a load backwards up a set of stairs ( compare Matter of Leuenberger v. McCall, 235 A.D.2d 906, 907, 652 N.Y.S.2d 671  ). Rather, petitioner testified that, as she fell backwards, she slammed into the door, which had been propped open by its spring mechanism, and it gave way, causing her to then hit the house. That a door that has been propped open by a spring mechanism will give way when slammed into cannot be considered unexpected, nothing about the door being propped open so as to allow entry into the house can be considered hazardous and petitioner offered no evidence that the door was defective. Accordingly, the evidence presented does not compel a finding, as a matter of law, that the door was a hazardous or defective condition that caused the injury such as in Pratt or its progeny ( see Matter of Balduzzi v. McCall, 220 A.D.2d 796, 631 N.Y.S.2d 943  [defective stair tread]; Matter of Sullivan v. Regan, 133 A.D.2d 993, 521 N.Y.S.2d 145  [icy curb]; Matter of Boudreau v. Regan, 129 A.D.2d 846, 513 N.Y.S.2d 869  [bottle lying on the ground] ). As substantial evidence supports the Comptroller's determination that the incident was not an accident, but was instead a risk inherent in the regular duties of petitioner's employment, it will not be disturbed ( see Matter of Kempkes v. DiNapoli, 81 A.D.3d at 1072, 916 N.Y.S.2d 338; Matter of Stimpson v. Hevesi, 38 A.D.3d at 980, 830 N.Y.S.2d 856; Matter of Felix v. New York State Comptroller, 28 A.D.3d at 994, 813 N.Y.S.2d 267).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ., concur.