Mr. Five Boro takes a dive on this oneMay 24, 2012
Congratulations to my colleague James F. Sullivan, Esq., on this DJ victory in American Transit Ins. Co. v. Toussaint, Index #: 105931/11 (Sup. Ct. NY Co., Rankower, J.). This is a Unitrin based DJ in Supreme, New York. I will digress for a moment.
In the last 18 months, we have recorded some of our favorite oppositions. I will share them with you by our favorite Defendants:
Mr. Five Boro: “you did not prove you mailed it”; “you did not prove he did not attend”; “Unitrin should not be followed”; and the Federal Arbitration Act precludes you from bringing this action.
Mr. Active Care Medical Supply Corporation: Same as above and: “There is no justiciable controversy (even though this fellow admits that he submitted claims in his answer)”; “Encare superseded Unitrin (stretching?)”; and “The life and times of some unknown attorney who presents the same affirmation in each case, with a new caption in each opposition, must result in the denial of your motion.” (a red herring which the former presiding Justice of the Appellate Term, First Department, Hon. Lucindo Suarez was not impressed with in American Transit v. Gibson, et. al. (Index #: 307797/11)(Sup. Ct. Bronx Co. 2012 [Suarez, J.])
Mr. City Care Acupuncture – and this one is great: cross-claims against the Assignor, counterclaims against us and this gentleman puts a notice in accordance with the FDCPA in his papers, I guess to protect himself from a federal lawsuit under 15 USC 1692-1692p.
Back to the post. What makes this case interesting is that the Supreme Court applied NYP v. Countriwide, for the proposition that the failure to attend an IME/EUO voids the assignment and the policy:
“The Policy and NY Insurance Regulation § 68 provide that Plaintiff may request that an eligible injured person submit to an examination under oath when and as often as, the company may reasonably require, as a condition precedent to the disbursement of any benefits under the terms of the Policy, where there is a failure to comply with the terms of the policy, any assignment of benefits becomes worthless. (See, New York and Presbyterian Hosp. v. Country-Wide Ins. Co., 2011 WL 4834479 ). Inasmuch as Toussaint failed to comply with the terms and conditions of the policy by failing to appeal for an examination under oath, Toussaint did not have the right to assign benefits to any medical providers, including Five Boro and Village, because the right to benefits was not triggered in the first place.”
For the life of me, I never understood why somebody would get involved in Supreme Court litigation and not attempt to present tangible proof to oppose the motion. A little footwork goes a long way.