3211(a)(1) – does not apply to an EUO no-show defenseSeptember 8, 2010

VIT Acupuncture, P.C. v State Farm Auto. Ins. Co., 2010 NY Slip Op 51560(U)(Civ. Ct. Kings Co. 2010)

The Civil Court found, not surprisingly, that CPLR 3211(a)(1) cannot be used to establish the bona fides of a policy violation defense.  This result was probably preordained in light of Fontanetta v Doe, 73 AD3d 78 (2d Dept 2010).  Except to prove a point that a pre-answer motion might be inappropriate in this particular type of case, it would seem more logical for the parties to chart a summary judgment course and have the matter adjudicated on the merits.  Now, an answer will be interposed and we will start this charade again.  Perhaps in an upstate court, an additional motion that is added to the calendar is inconsequential.  But, when you have 400 motions a day being calendared in Special Term in Civil Kings, each additional motion that does not need to made puts the attorneys and the staff that much closer to sharing the building with the small claims night-court term.

7 Responses

  1. Raymond Zuppa says:

    J.T. I agree with you. We must rewrite the CPLR to accommodate you. Well who knows it might get appealed and the Term could reverse Fontanetta.

  2. Applies just the same to garden variety verification motions. I’m amazed that the courts have let this go on for so long.

    • JT says:

      I am actually working on a matrimonial appeal involving the Supreme Court’s allowing a former client’s allocution, stating that the she was satisfied with the services of her former attorney, to serve as conclusive documentary evidence to dismiss a malpractice claim against the former attorney of the aggrieved client. I suspect this will be a big case for reasons I am not going to get into on this no-fault blog, and may end up going to the Court of Appeals. I am convinced, however, that CPLR 3211(a)(1) is a deadly weapon that is often misfired and misconstrued. In no-fault practice, it really does not matter whether the motion is made pre-answer or as an MSJ following joinder of issue, because discovery from the Plaintiff in no-fault is, at best, minimal. But, outside of no-fault, avoiding discovery will generally save the client legal fees an amount in excess of the jurisdiction limit of the lower courts. Reigning in 3211(a)(1) would be a huge boon to the plaintiffs and counterclaiming defendants in some serious commercial and matrimonial matters.

      Heck, maybe most of Zuppa’s Plaintiff’s actions might finally make it to discovery if CPLR 3211(a)(1) is limited.

  3. Raymond Zuppa says:

    Oh J.T. you have insulted me.

    First let us address your insane statement about Plaintiff’s discovery being limited. I have had cases wherein over 9,000 pages of bank records were obtained by an insurance company. They never used them and still cry about the Plaintiff’s failure to provide discovery.

    Now to the slight. I never discuss my garden variety victories or even “how did he do that” victories. Then there are my pro bono projects that challenge the powers that be.

    When one trys to change things for the better — to create some notion of fairness and justice for the little guy; one usually meets with frustration and defeat. You wouldn’t know about that.

    I wonder how many of the early suits against the tobacco companies were dismissed. For me the pleasure is the fight. I will break through soon enough. And when I do it is going to be very ugly for your friends. I hope they hire you so I can make it ugly for you too. Stay tuned and remember — I love you.

    • JT says:


      You are fun to play with. I am still in shock that you agree with me about MUA gone wrong. I have not heard any other Plaintiff speak up about the abuses of MUA, so I again tip my hat to you, in that limited regard.

  4. If 3211(a)(1) is misconstrued, 3211(a)(7) is abused. 3211(a)(7) is used as a catch-all. And in almost all cases, inappropriately used. If the Court of Appeals wants to do away with Brill, that’s fine; however, to allow the broad use of (a)(7) while Brill remains good law makes no sense at all.

  5. Raymond Zuppa says:

    J.T. I have to fake outrage every once in a while to maintain some dignity. If you think my MUA position deserves a hat tip I think you know you could tip your hat a few more times. I have the most diverse experience out there — of anybody. I prosecuted fraud. Led my own unit for insurance companies investigating fraud. Now I represent providers.

    This is not the Knights of the Round Table. There is bad everywhere. And intrigue. [edited]

    It’s mayhem and chaos and I love it.

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