1. Smiling

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None Found

New S. Ins. Co. v Dobbins, 2010 NY Slip Op 01773 (App. Div., 2nd, 2010)

In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to provide insurance coverage in connection with a vehicular accident that occurred on July 31, 2006, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Winslow, J.), entered July 23, 2008, as, upon renewal and reargument, adhered to a prior determination in an order dated November 21, 2007, denying that branch of its motion which was for leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint.

ORDERED that the order entered July 23, 2008, is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly, upon renewal and reargument, adhered to so much of its original determination as denied the plaintiff leave to enter judgment against the defendants James Dobbins, Jr., and Felita Dobbins, upon their default in answering the complaint. In support of its motion, the plaintiff offered the complaint, which was verified by plaintiff’s counsel, and an affidavit of the plaintiff’s investigator, neither of whom possessed personal knowledge of the facts constituting the claim (see CPLR 3215; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; Hosten v Oladapo, 44 AD3d 1006; Finnegan v Sheahan, 269 AD2d 491). The statements from the driver of the other vehicle that the plaintiff’s investigator relied upon in his affidavit constituted inadmissible hearsay (see CPLR 4518[a]; Hochhauser v Electric Ins. Co., 46 AD3d 174, 179-183; Metropolitan Cas. Ins. Co. v Shaid, 23 Misc 3d 1140[A]). Accordingly, entry of a default judgment against these defendants was properly denied on the papers before the Supreme Court. 

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A Default Denied

DISCOVERY STIPULATIONS

Putting collateral estoppel to use, but without success

NEW DECISION

NEW DECISIONS

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SIU, NICB, and Frye

Re-Peers, Depositions of Peers, and Some Questions

ROGAK GETS THE SCOOP

A LITTLE PICK ME (YOU) UP

THE CAROTHERS TRIAL

x2

h/t SHG

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None Found

• Nobody’s Business
• The Rut
• Failbooking (You might find some of the stuff offensive.  Don’t say you weren’t warned.)
• Section 1983 Blog
• Popehat
• Courtoons
• Mr. Self Development (Yes I read this stuff.  It doesn’t work.  I read it anyway.)
• The (new) legal writer
• Photography Is Not A Crime
• New York Personal Injury Blog (great set of posts on Scalia and secession)
• Very Demotivational (Might be offensive like Failbooking.  Stop being a baby.)

So, if anyone is wondering what the 9 circles of of hell are:

1. Limbo
2. Lust
3. Gluttony
4. Avarice
5. Wrath
6. Heresy
7. Violence
8. Fraud
9. Betrayal

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POSTS WILL RESUME SHORTLY

LEGAL WRITING

IT DOES EXIST

SCALIA THINKS I’M STUPID

AN EXCELLENT BLOG ON LEGAL WRITING

And on an entirely unrelated note, but for the lawyer thing:

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TYPES OF LAWYERS

ALLTOP LAW

SCALIA THINKS I’M STUPID

POLLS

NYACT Special Report

Bath Med. Supply, Inc. v Allstate Indem. Co., 2010 NY Slip Op 20059 (App. Term, 2nd, 2010)

In this action by a medical equipment provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved to dismiss the complaint pursuant to CPLR 3126 for plaintiff’s failure to comply with defendant’s discovery demands, including plaintiff’s failure to appear for an examination before trial, or, in the alternative, to compel plaintiff to appear for an examination before trial pursuant to CPLR 3124. In addition, defendant argued that plaintiff had violated a condition precedent to coverage by failing to appear for examinations under oath (EUOs) and that plaintiff’s motion for summary judgment should be denied because plaintiff had failed to make a prima facie case. The District Court denied plaintiff’s motion as premature, pursuant to CPLR 3212 (f), and granted defendant’s CPLR 3126 cross motion to dismiss unless, within 30 days of the order, plaintiff and its assignor submitted to examinations before trial. Plaintiff appeals and we reverse.

Contrary to defendant’s contention, plaintiff established its prima facie entitlement to summary judgment by proving submission of the claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). We note that the affidavit submitted by plaintiff established that the aforementioned forms, which were annexed to the affidavit, constituted evidence in admissible form (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & [*2]10th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

The court denied plaintiff’s motion for summary judgment pursuant to CPLR 3212 (f) on the ground that defendant was entitled to discovery pertaining to its contention that plaintiff had billed insurance companies for medical supplies which were never provided. However, defendant failed to make any showing that its denial of claim forms were timely mailed and that it is not precluded from raising fraudulent billing as a defense (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Consequently, the court’s determination that discovery was necessary to obtain facts relevant to this precluded defense was improper, and, thus, plaintiff’s motion for summary judgment should not have been denied on that basis.

A defense that plaintiff may be ineligible to recover no-fault benefits because it failed to adhere to applicable statutes (cf. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) is not precluded, notwithstanding defendant’s failure to demonstrate that its denial of claim forms were timely sent. However, defendant has offered no factual basis for its contention that plaintiff was not properly incorporated as a provider of durable medical equipment or failed to obtain any license that may have been required at the time it delivered medical equipment to its assignor. Further, in light of the availability of public records documenting plaintiff’s licensing status, defendant “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact (see CPLR 3212 [f])” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814, 815 [2009] [summary judgment should be deferred pending discovery only when the opponent "offer[s] an evidentiary basis to suggest that discovery might lead to relevant evidence and that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff”]).

We note that, insofar as the order conditioned the grant of defendant’s cross motion on the nonappearance of plaintiff’s assignor for an examination before trial, the order was improper. As plaintiff’s assignor is neither a party to this action nor under plaintiff’s control (Leon v Martinez, 84 NY2d 83, 88 [1994]; Cardtronics, LP v St. Nicholas Beverage Discount Ctr., Inc., 8 AD3d 419, 420 [2004]; 6A NY Jur 2d, Assignments §§ 59, 85), the sanctions provided by CPLR 3126 (3) for nondisclosure cannot be imposed on plaintiff for failing to produce its assignor for an examination before trial (MIA Acupuncture, P.C. v Mercury Ins. Co., ___ Misc 3d ___, 2009 NY Slip Op 29509 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Defendant also argues that it raised a triable issue of fact in opposition to plaintiff’s motion for summary judgment, in that it demonstrated that plaintiff failed to appear for an EUO. As noted above, defendant failed to show that it timely denied plaintiff’s claims. Accordingly, defendant has not established that this defense is not precluded (see Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Both of the issues (non party and 3212(f)) were discussed in the most recent edition of the wrap-up.  I posted the Corwin decision back in October, though I think JT got to it first, but I couldn’t find it on his blog.  In the wrap-up we discussed recent decisions that appeared to indicate per se 3212(f) relief could be granted where a defendant claimed a Mallela defense.  After reading this decision, I don’t think such a rule exists.

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Some New Decisions

INNOCENT THIRD PARTY?

FROM THE APPELLATE TERM, FIRST DEP’T

MORE OUT OF APP TERM 2nd

TWO MORE DECISIONS

“I’d sure like to get 24%”  “Where else can you get that kind of return on your money”

It sure sound likes a great return, right.  Yup, if you actually got that return.  What if instead of receiving that 24% you were told:

• I’ll give 25% of the 24%
  
• Waive it.  You’re being unreasonable by asking for it.
• Take off of work, come to court, don’t earn money that day, and I’ll consider giving you some of it.
• What?  The insurance department said I can’t request that you waive it?  Waive it anyway.

There are several variations of this.  Some of them are more absurd than these.

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BACK FROM CLASS (APPLAUSE?)

A RESPONSE TO THE NEW YORK LAW JOURNAL

RECAP

GOODBYE SWEET DONUT

NEW DECISIONS CAME OUT YESTERDAY

Advanced Tempromandibular Disorder & Dental Surgery v Progressive Northeastern Ins. Co., 2010 NY Slip Op 20047 (Dist Ct Suffolk County, Third Dist, 2010)

The doctrine of stare decisis binds this Court to follow the rulings of its Appellate Term (9th & 10th Dists.); the Second Department Appellate Division and the New York Court of Appeals. The plaintiff advances the argument that stare decisis requires it to adopt the First Department Appellate Division/Term decisions in the absence of a Second Department or Court of Appeals decision. See, Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663 (NYAD 2nd Dept. 1984). While generally true, the novel complicating factor in this case is that an Appellate Term Court in a different district in this Court’s Appellate Division has contemporaneously taken a contrary position. In such a circumstance, when presented with conflicting Appellate decisions from outside its jurisdictional chain, this Court determines that stare decisis does not bind it and that it is free to make its own decision.

The Court notes that a sister Suffolk County District Court has already addressed the issue and rendered a treatise decision citing to a plethora of case law and to Prof. David Siegal’s New York Practice Commentary and Prince, Richardson and Wigmore on Evidence, which allowed the use of Notices to Admit as prima facie evidence. Seaside Medical, P.C. v. General Assur. Co.,New York Law Journal, 3-26-2009, NYLJ 4 (col. 1); See generally, Taylor v. Blair, 116 AD2d 204 (NYAD 1st Dept.1986). The distinction between informal judicial 16 Misc. 3rd 758 (Suff. Co. Dist. Ct. 2007). This holding appears correct, especially in light of the simplified expedited payment process that the legislature has established for no-fault claims. “Notices to Admit” are more than simply a discovery device, such as an interogatory. The fundamental purpose of a Notice to Admit is to expedite the trial by eliminating the need to call a witness to prove an undisputed fact; matter which is easily provable or the genuineness of a document. See, [*3]admissions which are adduced in sworn deposition transcripts and interrogatory answers, and those established via formal judicial admissions established in a Notice to Admit is that the informal admissions must be proven at trial via witness testimony. The absence of an affirmative denial waives the need to prove the requested admission as effectively as if admitted in the answer.

Accordingly, the Court finds that the plaintiff has established an unrebutted prima facie cause of action pursuant to New York Insurance Law Sec. 5106 (a) and enters judgment for it in the sum of $1,184.66 plus statutory interest from 30 days after its claim date, statutory attorneys fees and costs. Settle judgment upon twenty (20) days notice.

Matter of Progressive Northeastern Ins. Co. v Akinyooye, 2010 NY Slip Op 01495 (App. Div, 2nd, 2010)

Contrary to the petitioner’s contention, the Supreme Court properly found, upon documentary submissions in lieu of a framed-issue hearing, that Allstate Insurance Company demonstrated that its insured was provided with a notice of intent to cancel and a cancellation notice fully compliant with Banking Law § 576, more than one year prior to the subject accident (see Crump v Unigard Ins. Co., 100 NY2d 12, 16; Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Matter of Autoone Ins. Co. v Zanders, 50 AD3d 682; Shia v McFarlane, 46 AD3d 320, 321; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680; Allstate Ins. Co. v Motor Veh. Acc. Indem. Co., 115 AD2d 264, 265). Accordingly, the Supreme Court properly, in effect, directed the parties to proceed to arbitration.

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NEW DECISION

NEW NO FAULT DECISION (NOTICE TO ADMIT)

CITED

APPELLATE TERM, 2ND DEPT. FOLLOWS LMK

HOT OFF THE PRESS

Yeah, weird title, I know.

Zuppa found an old (2007) Consumerist article: Like A Good Neighbor, State Farm Wants To Steal Your Money And Send You To Jail.  It discusses a lawsuit that resulted in $8,000,000.00 in punitive damages against State Farm.  Why so much?

State Farm’s Special Investigative Unit threatened an independent witness to solicit perjury, concealed and disregarded clear exculpatory evidence, reported what information they did collect in a false manner, and directed the conclusions of their mechanical expert. State Farm, knowing they did not have access to the Johnson County District Attorney’s Office, then provided this one sided and erroneous information to NICB, requesting instead that they refer the case to the Johnson County District Attorney for charging.

Wow.

The Missouri Injury Lawyer Blog has some interesting findings made by the trial court: 

Yikes.

I’ll probably add more later.

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TWO NEW CASES

TYPES OF LAWYERS

STATEMENTS OF THE INSURED ARE NOT ADMISSIBLE…

NTA REVISITED

SIU, NICB, and Frye