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.