theCPLRblog

Langan. Kind of important.

State Farm Mut. Auto. Ins. Co. v Langan, 2011 NY Slip Op 02437 (Ct. App. 2011)

This appeal turns on whether decedent's injuries were caused by an accident [*4]within the meaning of the policy. Although the endorsements at issue do not define the term "accident," we have previously held that it is not to be "given a narrow, technical definition," but should be interpreted according to how it would be understood by the average person (Miller v Continental Ins. Co., 40 NY2d 675, 676 [1976]). We have determined that, for purposes of automobile insurance policies, the term "accident" means an event typically involving violence or the application of external force (see Michaels v City of Buffalo, 85 NY2d 754, 758 [1995]). In order to determine whether a particular event was "accidental, 'it is customary to look at the casualty from the point of view of the insured, to see whether or not . . . it was unexpected, unusual and unforeseen'" (Miller, 40 NY2d at 677 [citation omitted]). Although we have noted that the perspective of the injured victim should not be used to determine whether an accident has occurred, "'[b]ecause an injury is always fortuitous to a non-consenting victim'" 
(Michaels, 85 NY2d at 759 [citation omitted]), here we have the situation where the victim is also the insured.

It is clear that, viewed from the insured's perspective, the occurrence was an unexpected or unintended event — and therefore an "accident" — even though Popadich admittedly intended to strike decedent with the vehicle. The language of the policy also suggests that this type of situation would be covered as it was an accident caused by the use of a motor vehicle that did not have an applicable insurance policy. Significantly, Insurance Department regulations require that an automobile owner's liability insurance policy contain a provision specifying "that assault and battery shall be deemed an accident unless committed by or at the direction of the insured" (11 NYCRR § 60-1.1 [f]). Although the provisions at issue here do not involve liability coverage, the regulation is relevant to the understanding of the extent of coverage provided by the endorsements.

The argument against requiring coverage, advanced by State Farm and relied upon by the Appellate Division, is based on the general principle that mandatory uninsured motorist benefits are meant to provide coverage that is coextensive with, and not greater than, that afforded by a standard liability policy. They rely on our statement that the purpose of mandatory UM benefits is "'to provide the insured with the same level of protection he or she would provide to others were the insured a tortfeasor in a bodily injury accident'" (Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 204 [2007], quoting Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681, 687 [1994]).

In support of its position, State Farm relies on McCarthy v Motor Veh. Acc. Indem. Corp. (16 AD2d 35 [4th Dept 1962], affd 12 NY2d 922 [1963]), a case where the plaintiff-victim was injured when the insured motorist committed an intentional assault against her using his vehicle. After the insurer denied coverage because the occurrence was not an [*5]accident within the meaning of the policy, plaintiff sought to recover under the policy's MVAIC endorsement — a statutorily required endorsement intended to afford coverage to a person injured by an uninsured or unidentified motorist, equal to that available to one injured by a motorist covered by an applicable liability policy (see McCarthy, 16 AD2d at 38). MVAIC is funded by assessments levied against all of the insurance companies licensed to conduct business in the state (see McCarthy, 16 AD2d at 39). McCarthy held that since an intentional assault committed by an insured motorist was not an accident subject to coverage under the standard liability policy, such an occurrence would likewise be excluded from coverage under the MVAIC endorsement (see McCarthy, 16 AD2d at 43). The Court also determined that allowing recovery under MVAIC would be inconsistent with the purpose for which the special fund had been established (see McCarthy, 16 AD2d at 44).

This case differs from McCarthy in two important respects. First, UM coverage, although required by statute, is part of the insured's own policy — a policy that the insured selected and for which he pays premiums. Benefits received through coverage under the UM endorsement do not come out of a State fund. Second, the insured is the victim in this case, not the tortfeasor, and the public policy against providing coverage for an insured's criminal acts is not implicated.

We hold that, consistent with the reasonable expectation of the insured under the policy and the stated purpose of the UM endorsement (to provide coverage against damage caused by uninsured motorists), the intentional assault of an innocent insured is an accident within the meaning of his or her own policy. The occurrence at issue was clearly an accident from the insured's point of view and Langan is entitled to benefits under the UM endorsement.

This result is also in keeping with the national trend toward allowing innocent insureds to recover uninsured motorist benefits under their own policies when they have been injured through the intentional conduct of another (see e.g. American Family Mut. Ins. Co. v Petersen, 679 NW2d 571 [Iowa 2004]; Shaw v City of Jersey City, 174 NJ 567, 811 A2d 404 [2002]; Wendell v State Farm Mut. Auto. Ins. Co., 293 Mont 140, 974 P2d 623 [1999]). Although the above decisions are not binding on this Court, we are persuaded that the view that has been adopted by these jurisdictions is the better one.

For many of the same reasons, Langan is entitled to coverage under the PIP endorsement and Coverage S. The average insured's understanding of the term "accident" is unlikely to vary from endorsement to endorsement within the same policy. The occurrence, from the insured's perspective, was certainly unexpected and unforeseen and should be considered an accident subject to coverage. Contrary to State Farm's argument, we perceive no danger that this result will frustrate efforts to fight fraud in the no-fault insurance system. Significantly, there is [*6]no allegation whatsoever of fraud in this case and it is patent that benefits should continue to be denied to those who intentionally cause their own injuries.

The argument that Langan is entitled to attorneys' fees was not addressed by the courts below and should be remitted to Supreme Court for its determination in the first instance.

Accordingly, the order of the Appellate Division should be modified, without costs, by granting defendant judgment declaring in accordance with this opinion and remitting to Supreme Court for further proceedings in accordance with this opinion, and, as so modified, affirmed. The certified question should be answered in the negative. 

There is a dissent from Smith.

Because I'm sick of posting cases

It might seem easy, but it is a time consuming pain in the ass to look through all the cases and get the relevant ones on here.  Without my computer, keyboard, and mouse set-up, I probably wouldn't even bother with this.  The screen is big enough so I can have two sites up at once, the keyboard is ergomic, and the mouse has enough programmable buttons to make everything happen (copy, paste, push everything to the side, fast scroll, etc.).  The mouse is the key in all this.  I've tried others but I always come back to Logitech's MX1100 (you can get it cheaper elsewhere--they may have replaced it with a something different).  If you aren't a tech person, this means nothing to you, but if you are, and you are anything like me, you bring your own keyboard and mouse to the office, so rejoice in the fact that there is someone weirder than you out there.  Add some Skitch and Dropbox and it's a pretty good setup. Wait.  Can't forget about the Undo Closed Tabs and After The Deadline extensions for Chrome.

I haven't been reading much lately because my job has required more of my attention than usual, so I'm still reading the books I was since my last post on books and such.  I picked up the Grammar Girl book and I've been reading it here and there, but that's about it.

What else.  What else.

I've been sucked in to watching Mad Men and Fringe.  I bought some notebooks that I will probably never write in.  There is one notebook that has turned out to be pretty useful though: the action journal. If you haven't seen this video of a kid standing up to his bully, you should.  As it turns out the quality of legal writing really doesn't mean much at all.  I want this.  But watching this mades me think that it really isn't all that important.  At least someone is rooting for Barry Bonds.  Rhetoric.   Best blog on legal writing right here.  Perilous headnotes.  Faster, better, and.

And that's it.  You know its time to stop when you don't feel like writing full sentences.

The No-Fault (most of March 2011)

I just realized that I haven't posted a no-fault case in over a month.

Appellate Division, Second Department

Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 2011 NY Slip Op 02379 (App. Div., 2nd 2011)

The plaintiff hospital, as assignee of Bartolo Reyes, was awarded judgment against the defendant in the principal sum of $416,039.42, in this action to recover no-fault medical benefits under a contract of insurance entered into between the plaintiff's assignee and the defendant. The defendant thereafter moved to modify the judgment pursuant to CPLR 5015(a), belatedly asserting that the judgment exceeded the coverage limit of the subject policy due, in part, to payments previously made under the policy to other health care providers. In the order appealed from, the Supreme Court properly denied the defendant's motion to modify the judgment.

The defendant failed to specify on which of the five subdivisions of CPLR 5015(a) its motion was based, much less establish its entitlement to relief on any of the enumerated grounds. To the extent that the defendant sought modification pursuant to CPLR 5015(a)(2) based upon "newly-discovered evidence," the defendant failed to demonstrate that the evidence offered in support of the motion, i.e., an affidavit of an employee setting forth the policy limits and the amount of benefits paid for alleged prior claims, "was not available at the time of the prejudgment proceedings" (Jonas v Jonas, 4 AD3d 336, 336; see Sicurelli v Sicurelli, 73 AD3d 735).

Moreover, although courts possess inherent discretionary power to grant relief from a judgment or order in the interest of justice, this "extraordinary relief" is not appropriate under the circumstances presented (Jakobleff v Jakobleff, 108 AD2d 725, 726-727; see Selinger v Selinger, 250 AD2d 752). The plaintiff previously moved for summary judgment on the complaint, seeking a certain amount of benefits, in accordance with the no-fault billing statement sent to the defendant, and this Court reversed the denial of that motion and granted the plaintiff's motion for summary judgment on the complaint (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045). Only after the plaintiff obtained, upon this Court's order, a judgment from the Clerk of the Supreme Court, Nassau County, representing, inter alia, the amount of benefits sought in the complaint, did the defendant raise the issue of exhaustion of the policy limits. Under these circumstances, modification of the judgment in the interest of justice is not warranted.

Manuel v New York City Tr. Auth., 2011 NY Slip Op 02362 (App. Div., 2nd 2011) ("Alighting")

For the no-fault statute to apply, the vehicle must be a proximate cause of the injury (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 215). To be a proximate cause of the injury, the use of the motor vehicle must be closely related to the injury (see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597; Elite Ambulette Corp. v All City Ins. Co., 293 AD2d 643). Also, the injury must result from the intrinsic nature of the motor vehicle as such, and the use of the vehicle must do more than merely contribute to the condition which produced it (see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597; Republic Long Is., Inc. v Andrew J. Vanacore, Inc., 29 AD3d 665; Duroseau v Town of Hempstead, 117 AD2d 579).

Here, the negligent operation of a motor vehicle was the proximate cause of the plaintiff's injuries. The plaintiff's theory of liability is that her injuries resulted from the manner in which the bus driver operated the bus, specifically his positioning of the bus next to a hole in the street when he pulled over at the bus stop. Moreover, this is not a case in which the plaintiff was completely outside of the vehicle when the accident occurred (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d at 215; Santo v Government Empls. Ins. Co., 31 AD3d 525; Elite Ambulette Corp. v All City Ins. Co., 293 AD2d 643), or in which the plaintiff was the victim of an intentional tort (see Lancer Ins. Co. v Peterson, 175 AD2d 239; Locascio v Atlantic Mut. Ins. Co., 127 AD2d 746; Matter of Manhattan & Bronx Surface Tr. Operating Auth. [Gholson], 71 AD2d 1004).

This case is analogous to Hill v Metropolitan Suburban Bus Auth. (157 AD2d 93). In Hill, the plaintiff fell while descending the stairs of the rear exit of a bus, when she tripped on a nail or tile on the bus staircase and fell into a hole in the sidewalk. This Court agreed with the defendant's assertion that the no-fault law applied, because the accident arose from the use or operation of a bus (see Matter of Celona v Royal Globe Ins. Co., (85 AD2d 635).

NYCTA was not estopped from arguing that the accident arose from the use or operation of the insured vehicle, as NYCTA never did anything to lead the plaintiff to believe that it would not argue that the accident arose from the use or operation of a motor vehicle (see Walsh v Prudential Ins. Co. of Amer., 101 AD2d 988). NYCTA stated at trial that first-party benefits had been denied because it had no record of the accident.

Appellate Division, FIrst Department

Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 2011 NY Slip Op 01948 (App. Div., 1st 2011)

The motion court properly determined that plaintiff insurer may retroactively deny claims on the basis of defendants' assignors' failure to appear for independent medical examinations (IMEs) requested by plaintiff, even though plaintiff initially denied the claims on the ground of lack of medical necessity (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721-722 [2006]). The failure to appear for IMEs requested by the insurer "when, and as often as, [it] may reasonably require" (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the No-Fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]). Accordingly, when defendants' assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65-3.8[c]; Fogel, 35 AD3d at 721-22).

It is of no moment that the retroactive denials premised on failure to attend IMEs were embodied in blanket denial forms, or that they were issued based on failure to attend IMEs in a different medical speciality from that which underlies the claims at issue. A denial premised on breach of a condition precedent to coverage voids the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense premised on no coverage (see Chubb, 90 NY2d at 199).

There is likewise no merit to defendants' contention that the IME request notices were invalid. Plaintiff satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time-frames set forth in the No-Fault implementing regulations, and that defendants' assignors did not appear. In opposition, defendants failed to raise an issue of fact that the requests were unreasonable (see generally Celtic Med. P.C. v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 13, 14-15 [2007]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 21 [2005]).

Defendants' argument that plaintiff was required to demonstrate that the assignors' failure to appear for the IMEs was willful is unpreserved and, in any event, without merit. The doctrine of willfulness, as addressed in Thrasher v United States Liab. Ins. Co. (19 NY2d 159 [1967]), applies in the context of liability policies, and has no application in the No-Fault context, where the eligible injured party has full control over the requirements and conditions necessary to obtain coverage (cf. id. at 168).

I think this is an absolutely terrible decision.  The language of the decision permits an insurance policty to be voided ab initio as a result of the actions of someone other than the insured.  So if the insured has an accident and a passenger gets hurt, but does not attend an IME, the insured's policy goes bye bye.  It also expands the scope of a coverage defense beyond the Court of Appeal's definition.  And the decision is in conflict with longstanding law from the Second Department.  Hopefully the Court of Appeals will take this one.

For a much longer discussion of this decision and what it spells for the future of no-fault, head over to No-Fault Defender where there are 60 comments and counting.

Appellate Term, Second Department

The Appellate Term denied leave for Belt Parkway Imaging, P.C. v State Wide Ins. Co., 2010 NY Slip Op 52229(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Gateway Med., P.C. v Progressive Ins. Co., 2011 NY Slip Op 50336(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2011).

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint for lack of personal jurisdiction since the purported service of the summons and complaint under CPLR 312-a was never completed, as defendant never signed and returned an acknowledgment of service. Plaintiff opposed the motion, arguing that defendant should be compelled to sign the acknowledgment or, in the alternative, that plaintiff should be permitted to serve the summons and complaint by another manner. The Civil Court denied defendant's motion, and this appeal ensued.

The record reveals that an acknowledgment of receipt was never signed by defendant and returned to plaintiff. "If the acknowledgment of receipt is not mailed or returned to the sender, the sender is required to effect personal service in another manner" (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see also Patterson v Balaquiot, 188 AD2d 275 [1992]). Plaintiffs did not effect service in another manner. Accordingly, the service was defective and defendant's motion to dismiss the complaint should have been granted.

JT had an interesting take on the case.

W & Z Acupuncture, P.C. v Allstate Ins. Co., 2010 NY Slip Op 52385(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Subsequent to that [discovery] order, the Civil Court issued an order dismissing the action since plaintiff failed to produce the court-ordered discovery. The dismissal of the action rendered the instant appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

The bracketed word is mine.

Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 2011 NY Slip Op 50315(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

The billing records submitted by plaintiff in support of its motion for summary judgment do not assert that the supplies at issue had been delivered to plaintiff's assignor. Nor did plaintiff's affiant state that he had delivered the supplies to plaintiff's assignor. Indeed, he stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or to (2) deliver them to the prescribing healthcare providers for subsequent delivery to the eligible injured person. He did not specify in his affidavit which method of delivery was used in this case. Accordingly, plaintiff's moving papers failed to demonstrate its prima facie entitlement to summary judgment. 

We note that the holding in Fair Price Med. Supply Corp. v Travelers Indem. Co. (10 NY3d 556 [2008]) does not impact our decision in this case because, in that case, the issue of whether the plaintiff had made out a prima facie case was not dealt with by either the Appellate Division (42 AD3d 277 [2007]) or the Court of Appeals (10 NY3d 556). The Court of Appeals held that a defense that the billed-for services or supplies were never provided is precluded if the insurer fails to timely deny the claim, and both courts limited their discussions to the preclusion issue. Here, we are asked to consider whether plaintiff's moving papers made out a prima facie case in the first instance so as to even shift the burden to defendant to raise a non-precluded defense (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and we conclude that they did not.

The Court distinguishes Fair Price in a way that renders the Court of Appeals' decision meaningless.

Quality Health Prods. v Country-Wide Ins. Co., 2011 NY Slip Op 50328(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Plaintiff established that defendant did not pay plaintiff's claim. However, plaintiff failed to establish that the claim was not denied within 30 days (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Plaintiff attached a copy of a portion of defendant's denial of claim form to its motion papers, but this copy did not establish that defendant did not deny the claim within 30 days, since the date of the denial of claim form was not contained in the portion of the form annexed to plaintiff's papers. Moreover, plaintiff's affiant did not provide the date on which the denial of claim form was received by plaintiff. Furthermore, the reason for defendant's denial of the claim was also not included in the annexed portion of the form. As plaintiff failed to show that the claim was not denied within 30 days or that the basis for the denial was conclusory, vague or had no merit as a matter of law, it failed to make a prima facie showing of its entitlement to judgment as a matter of law (see Westchester Med. Ctr., 78 AD3d 1168). As a result, we need not consider the sufficiency of defendant's paper's submitted in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the order denying plaintiff's motion for summary judgment is affirmed, albeit on a different ground.

Westchester doesn't quite say what they cite it to say.

Exoto, Inc. v Progressive Ins. Co., 2011 NY Slip Op 50329(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

On appeal, plaintiff asserts that it provided defendant with the NF-3 form it requested as additional verification. Plaintiff did not subsequently respond to defendant's follow-up request seeking the same verification because defendant failed to clearly state why the previously submitted NF-3 form was insufficient. Consequently, plaintiff argues, it is not in default in providing the requested verification.

A review of the record indicates that each of defendant's requests for NF-3 forms states, in pertinent part, that "Every box must be fully completed, blank boxes will not be accepted." It is uncontroverted that the box on the NF-3 form plaintiff provided in response to defendant's initial verification request - - wherein the provider's signature should be placed - - was left blank. Therefore, when defendant issued its follow-up request which, again, informed plaintiff that "Every box must be fully completed, blank boxes will not be accepted," defendant clearly apprised plaintiff of why the submitted NF-3 form did not satisfy its request for verification.

Since plaintiff did not demonstrate that it had provided defendant with the requested verification prior to the commencement of the instant action, the 30-day period within which defendant was required to pay or deny the claim did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Consequently, the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint as premature and denied plaintiff's cross motion for summary judgment. Accordingly, the judgment is affirmed.

If you knew the facts of this case you would cringe after reading this decision.

CPLR R. 2219 Time and form of order.

Omega Diagnostic Imaging, P.C. v MVAIC, 2011 NY Slip Op 50331(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Contrary to the determination of the Civil Court, MVAIC defaulted because it failed to submit written opposition to plaintiff's motion for summary judgment (see CPLR 2219 [a]; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Millennium Med. Instruments v MVAIC, 27 Misc 3d 127[A], 2010 NY Slip Op 50583[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Accordingly, MVAIC's motion properly sought to vacate the default judgment entered against it.

In support of its motion, under the circumstances presented, MVAIC established both a reasonable excuse for its default and the existence of a potentially meritorious defense. Accordingly, MVAIC's motion to vacate the default judgment entered against it should have been granted (see Strauss v R & K Envtl., 66 AD3d 766 [2009]; New York Univ. Hosp. Rusk Inst. v Illinois Natl. Ins. Co., 31 AD3d 511 [2006]; New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442 [2006]).

Go here for some background on this appeal.

Appellate Term, First Department

Now take a look at how the First Department approaches and MVAIC appeal.  Same attorneys.

Omega Diagnostic Imaging, P.C. v MVAIC, 2011 NY Slip Op 50432(U) (App. Term, 1st 2011)

[A]ffirmed, with $10 costs.

In this action by plaintiff-provider to recover assigned first-party no-fault benefits, defendant MVAIC's motion for summary judgment dismissing the claim based on plaintiff's failure to establish that its assignor qualified for MVAIC coverage, was properly denied (see Matter of MVAIC v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. (___AD3d ___, 2011 NY Slip Op 00176 [2011]). Nor has defendant established that plaintiff was required to "exhaust its remedies" prior to commencing this action (see Omega Diagnostic Imaging, P.C. v MVAIC, 29 Misc 3d 129[A], 2010 NY Slip Op 51779[U] [2010]). Defendant's argument, raised for the first time on appeal, that it is entitled to dismissal of the action as premature based on outstanding verification requests is without merit (id.).

Kind of a big deal (below).  I forgot whether I posted this before and I don't feel like checking.

Pomona Med. Diagnostics, P.C. v GEICO Ins. Co., 30 Misc 3d 141(A) (App. Term, 1st 2011)

In opposition to plaintiff's prima facie showing of entitlement to judgment as a matter of law (see Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313, 314 [2008]; Central Nassau Diagnostic Imaging, P.C. v GEICO, 28 Misc 3d 34, 36 [2010]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]), the report of defendant's peer review doctor, which relied on the assignor's medical records (see Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10, 11 [2006]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [2010]), raised a triable issue of fact as to whether the services provided by plaintiff were medically necessary (see Krishna v Liberty Mut. Ins. Co., 24 Misc 3d 128[A], 2009 NY Slip Op 51312[U] [2009]). Contrary to defendant's contention, however, its "submissions did not conclusively establish as a matter of law its defense of lack of medical necessity," and its cross motion was properly denied (A Plus Med., P.C. v Mercury Cas. Co., 23 Misc 3d 136[A], 2009 NY Slip Op 50824[U] [2009]).

Combine this decision with Abdalla v Mazl Taxi, Inc., 2010 NY Slip Op 06071 (App. Div., 2nd, 2010), Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 51442(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010), and Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51467(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010), and you have something interesting.

5015 generally

CPLR R. 5015

Giraldo v Weingarten, 2011 NY Slip Op 01433 (App. Div., 2nd 2011)

In support of that branch of the motion of the defendant Koytcho Koev (hereinafter the defendant) which was pursuant to CPLR 5015(a)(1) to vacate the judgment entered upon an order granting the plaintiffs' unopposed motion for leave to enter a judgment upon his failure to appear or answer the complaint, the defendant failed to demonstrate a reasonable excuse for his default in opposing the plaintiffs' motion and a potentially meritorious defense to the action (see NY SMS Waterproofing, Inc. v Congregation Machne Chaim, Inc.,AD3d, 2011 NY Slip Op 00661 [2d Dept 2011]; Bazoyah v Herschitz, 79 AD3d 1081; Campbell-Jarvis v Alves, 68 AD3d 701). Furthermore, the defendant did not offer any explanation for the six-month delay in moving to vacate the default judgment after he received it in the mail (see Alterbaum v Shubert Org., Inc., AD3d, 2011 NY Slip Op 00339 [2d Dept 2011]; Bekker v Fleischman, 35 AD3d 334; Epps v LaSalle Bus, 271 AD2d 400).

In support of that branch of his motion which was pursuant to CPLR 317 to vacate the default judgment, the defendant failed to demonstrate that he did not personally receive notice of the summons in time to defend the action (see Thas v Dayrich Trading, Inc., 78 AD3d 1163; Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511; General Motors Acceptance Corp. [*2]v Grade A Auto Body, Inc., 21 AD3d 447).

 

Just a little 3212, including (f).

Gardner v Cason, Inc., 2011 NY Slip Op 01971 (App. Div., 2nd 2011)

It was premature to award summary judgment at this stage of the case. "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793). The plaintiff and the defendant Grumbly submitted, among other things, affidavits containing discrepancies pertaining to the circumstances of the accident, including as to the decedent's culpability. Furthermore, no depositions have been conducted, including any depositions of key eyewitnesses identified in the police accident report. Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability with leave to renew after the completion of discovery (see Gruenfeld v City of New Rochelle, 72 AD3d 1025; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Martinez v Ashley Apts. Co., LLC, 44 AD3d 830; Tyme v City of New York, 22 AD3d 571; see generally CPLR 3212[f]).

Carden v City of New York, 2011 NY Slip Op 01787 (App. Div., 2nd 2011)

In support of their motion for summary judgment, the defendants Hallen Construction Co., Inc. (hereinafter Hallen), and Keyspan Energy Delivery N.Y.C. (hereinafter Keyspan) submitted evidence sufficient to establish, prima facie, that they did not create the alleged defect in the roadway which caused the plaintiff driver to sustain injuries (see Courtright v Orange and Rockland Utils., Inc., 76 AD3d 501; Garcia v City of New York, 53 AD3d 644; Rubina v City of New York, 51 AD3d 761). In opposition, the plaintiffs submitted evidence sufficient to raise triable issues of fact as to the exact situs of the defect and whether Hallen and Kesypan created the alleged defect. Generally, an opposing party must make a showing of evidentiary proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557). "Under certain circumstances [o]ur courts have recognized that proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment'" (Guzman v Strab Constr. Corp., 228 AD2d 645, 646 quoting Zuilkowski v Sentry Ins., 114 AD2d 453, 454; see Phillips v Kantor & Co., 31 NY2d 307). Here, the accident report from the New York City Sanitation Department, which was produced during discovery and had sufficient indicia of reliability, raised a triable issue of fact as to whether the alleged defect was located within the area where Keyspan and Hallen performed their work (see Asare v Ramirez, 5 AD3d 193; Guzman v Strab Constr. Corp., 228 AD2d 645).

Heath v Liberato, 2011 NY Slip Op 01803 (App. Div., 2nd 2011)

In opposition, the defendant failed to raise a triable issue of fact. The defendant's opposition merely raised "feigned" issues of fact, which are insufficient to defeat a motion for summary judgment (Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 257; see Miller v City of New York, 214 AD2d 657; Garvin v Rosenberg, 204 AD2d 388). The defendant also failed to demonstrate that further discovery was warranted (see Benedikt v Certified Lbr. Corp., 60 AD3d 798; Lopez v WS Distrib., Inc., 34 AD3d 759).

Anastasio v Berry Complex, LLC, 2011 NY Slip Op 01778 (App. Div., 2nd 2011)

None of the defendants submitted evidence sufficient to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Contrary to York's contention, a triable issue of fact exists as to whether it launched an instrument of harm by allegedly negligently erecting the sidewalk shed (see Manicone v City of New York, 75 AD3d 535; Ragone v Spring Scaffolding, Inc., 46 AD3d 652; Phillips v Seril, 209 AD2d 496). With respect to Design Built, triable issues of fact exist as to whether it exercised control over the construction site, as the general contractor, and whether it created or had actual or constructive notice of the alleged hazardous conditions (see Mancone v City of New York, 75 AD3d 535). Berry failed to establish, prima facie, that it lacked constructive notice of the alleged ice condition on the sidewalk abutting its property (see Martinez v Khaimov, 74 AD3d 1031; see generally Administrative Code of the City of New York 7-210). Since none of the parties satisfied their prima facie burden as the movants, we need not review the sufficiency of the plaintiff's opposition papers (see Totten v Cumberland Farms, Inc., 57 AD3d 653; Joachim v 1824 Church Ave., Inc., 12 AD3d 409).

AGFA Photo USA Corp. v Chromazone, Inc., 2011 NY Slip Op 01517 (App. Div., 1st 2011)

Defendants' argument that plaintiff's second motion for summary judgment should have been treated as a motion to renew, is improperly raised for the first time on appeal (see Callisto Pharm., Inc. v Picker, 74 AD3d 545 [2010]). Were we to review this argument, we would find that the court's treatment of the motion was entirely appropriate. When the court denied plaintiff's initial motion for summary judgment, it did so "without prejudice to another motion for summary judgment" with the submission of additional evidence (see CPLR 3212[f]).

Plaintiff established its prima facie entitlement to judgment as a matter of law on its claims for breach of the equipment lease agreement and service maintenance agreement by submitting the subject agreements, the agreement assigning AFGA Corporation's rights to plaintiff and evidence of nonpayment in the form of the demand notices (see Advanta Leasing Servs. v Laurel Way Spur Petroleum Corp., 11 AD3d 571 [2004]). In opposition, defendants failed to raise a triable issue of fact. Contrary to defendants' argument that plaintiff failed to meet its obligations under the service maintenance agreement, any alleged failure by plaintiff to provide parts and services had no bearing on defendants' breach under the lease agreement. Moreover, the record establishes that plaintiff indeed continued servicing the equipment during the relevant time period.

Plaintiff also established its entitlement to summary judgment on its conversion cause of action. Plaintiff submitted evidence demonstrating that the individual defendant exercised unauthorized dominion and control over the equipment by making unapproved alterations to it, by removing the equipment from the installation site without notice or consent and by relocating the equipment to his new business (see Meese v Miller, 79 AD2d 237, 242 [1981] ["(c)onversion is any unauthorized exercise of dominion or control over property by one who is not the owner of the property which interferes with and is in defiance of a superior possessory right of another in the property"]). Defendants' opposition failed to raise a triable issue of fact. The affidavit from  the individual defendant conflicted with his deposition testimony and appears tailored to avoid the consequences of his earlier testimony (see e.g. Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]).

 

SOL defense resurrected ("retracted") in opp to SJ

CPLR R. 3211(e)

I don't rembember seeing this before

Lewiarz v Travco Ins. Co., 2011 NY Slip Op 02094 (App. Div. 3rd 2011)

Preliminarily, we conclude that Supreme Court properly entertained defendants' statute of limitations argument set forth for the first time in their motion for summary judgment. Plaintiffs correctly note that defendants had neither raised the statute of limitations defense in their answer nor moved to dismiss the complaint on that ground pursuant to CPLR 3211 (a) prior to their summary judgment motion. However, "'the waiver that would otherwise have resulted from [the failure to plead the defense or move to dismiss the complaint premised on such defense] was retracted by assertion of the defense in connection with the summary judgment motion[]'" (Allen v Matthews, 266 AD2d 782, 784 [1999], quoting Adsit v Quantam Chem. Corp., 199 AD2d 899, 900 [1993] [citation omitted]; see Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]).

I think the cite to Sullivan is a stretch.  I didn't look up the others.

No 4401 before close of plaintiff's evidence

CPLR R. 4401 Motion for judgment during trial

Montano v Spagnuolo, 2011 NY Slip Op 01445 (App. Div., 2nd 2011)

After granting the motion of the defendant Stuart Styles (hereinafter the defendant), made during trial, for a new trial, in effect, pursuant to CPLR 4402, the Supreme Court granted the defendant's motion, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against him. In addition to the fact that the Supreme Court had previously granted the defendant's motion for a new trial, the motion, in effect, pursuant to CPLR 4401 was made before the close of the plaintiffs' evidence. Accordingly, that motion should not have been entertained (see CPLR 4401; Canteen v City of White Plains, 165 AD2d 856, 857; Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 AD2d 196, 197; Balogh v H.R.B. Caterers, 88 AD2d 136, 141; Levy v Goldman, 252 App Div 781).

properly considered the cross-motion: 2103 2001

CPLR R. 2103 Service of papers

CPLR § 2001 Mistakes, omissions, defects, and irregularities

Jones v LeFrance Leasing Ltd. Partnership, 2011 NY Slip Op 01441 (App. Div., 2nd 2011)

Contrary to Alliance's contention, the Supreme Court properly considered the plaintiffs' cross motion. Although the plaintiffs served their cross motion via media mail, as opposed to first class mail (see CPLR 2103), since Alliance opposed the cross motion on the merits, the defect in service was a mere irregularity that did not result in substantial prejudice to Alliance (see CPLR 2001; Piquette v City of New York, 4 AD3d 402, 403; see also Henry v Gutenplan, 197 AD2d 608). 

Consolidaton and sanctions: CPLR § 602

CPLR § 602

Galasso, Langione & Botter, LLP v Galasso, 2011 NY Slip Op 01430 (App. Div., 2nd 2011)

"A motion for consolidation is addressed to the sound discretion of the court, and absent a showing of substantial prejudice by the party opposing the motion, consolidation is proper where there are common questions of law and fact" (RCN Constr. Corp. v Fleet Bank, N.A., 34 AD3d 776, 777). Here, the Supreme Court providently exercised its discretion in denying the motion to consolidate, as there were no common questions of law and fact. The Supreme Court also providently exercised its discretion in granting the cross motion of the plaintiffs in Action Nos. 1 and 2 to impose sanctions against the appellant (see 22 NYCRR 130-1.1[c]; Tornheim v Blue & White Food Prods. Corp., 73 AD3d 749).

Res Judicata, a prior stip, and CPLR 3217

CPLR 3217 Voluntary discontinuance
(c) Effect of discontinuance

Maurischat v County of Nassau,  2011 NY Slip Op 01249 (App. Div., 2nd 2011)

After locating the settlement documents, the defendant moved, inter alia, for summary judgment on res judicata grounds. The Supreme Court denied that branch of the defendant's motion on the ground that since the settlement documents did not state that the prior action was settled "with prejudice," res judicata was inapplicable to bar the second action. " Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action'" (Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 12, quoting Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347; see Wisell v Indo-Med Commodities, Inc., 74 AD3d 1059, Matter of AutoOne Ins. Co. v Valentine, 72 AD3d 953, 955; Pawling Lake Prop. Owners Assn., Inc. v Greiner, 72 AD3d 665, 667; 99 Cents Concepts, Inc. v Queens Broadway, LLC, 70 AD3d 656, 658). "A voluntary discontinuance ordinarily is not a decision on the merits, and res judicata does not bar a [plaintiff] from maintaining another proceeding for the same claim unless the order of discontinuance recites that the claim was discontinued or settled on the merits" (Matter of AutoOne Ins. Co. v Valentine, 72 AD3d at 955). Thus, a stipulation to discontinue an action without prejudice is not subject to the doctrine of res judicata (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d at 12; Matter of AutoOne Ins. Co. v Valentine, 72 AD3d 953; see also 99 Cents Concepts, Inc. v Queens Broadway, LLC, 70 AD3d at 658; cf. Greenstone/Fontana Corp. v Feldstein, 72 AD3d 890, 893; Pawling Lake Prop. Owners Assn., Inc. v Greiner, 72 AD3d at 667; Liberty Assoc. v Etkin, 69 AD3d 681, 682-683).

Here, the Supreme Court properly found that the doctrine of res judicata did not bar this action since the stipulation discontinuing the plaintiffs' prior action against the defendant, commenced in 1993, was not with prejudice (see Matter of AutoOne Ins. Co. v Valentine, 72 AD3d at 955; North Shore-Long Island Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440; Southampton Acres Homeowners Assn. v Riddle, 299 AD2d 334, 335; Van Hof v Town of Warwick, 249 AD2d 382, 382; Forte v Kaneka Am. Corp., 110 AD2d 81, 85; see generally CPLR 3217[c]).

The defendant's contention that the general release was intended to prevent the litigation of any claim that might have arisen out of the construction of its culvert is improperly raised for the first time before this Court (see Matter of Castillo v Town of Oyster Bay, 70 AD3d 939; Matter of Panetta v Carroll, 62 AD3d 1010).