Punch drunk off CPLR 3212(g)December 13, 2010
The 3212(g) effect. Limiting issues for trial. According to Professor Siegel, 3212(g) is the remnants of “the aborted motion for summary judgment.” This provision is a wonderful way to compel, in effect, a framed issue hearing, which is what a no-fault trial generally should be.
Well, a drizzle has just invaded paradise, or maybe a tsunami depending on what the record of appeal says in this case.
Quality Med. Healthcare of NY, P.C. v NY Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 20493 (App. Term 2d Dept. 2010).
“Upon a review the record, we find that there was no basis in this case for the Civil Court to have limited issues for trial pursuant to CPLR 3212 (g). First, the record does not demonstrate that there is no dispute, or that it is incontrovertible, that plaintiff had submitted “proof of the fact and amount of loss sustained” to defendant and that defendant had failed to pay the claim within 30 days of receipt of such proof (see Insurance Law § 5106 [a]). Furthermore, the record does not demonstrate that, of the 31 defenses raised by defendant in its answer, none were viable except for the excessiveness of the fee schedule, which is the implication of an order limiting the trial to this defense. Indeed, it is noted that, in opposition to plaintiff’s motion, defendant submitted sufficient evidence to raise a triable issue of fact as to whether plaintiff was certified to practice acupuncture at the time that the acupuncture services at issue were rendered”
By the way, what would happen if instead of having an order (3212[g]) dispose of the underlying motion, a trial stipulation similar to the motion disposition was interposed?
Also, does anyone sense an element of sandbagging here? Not nice.