So what did the Second Department mean?January 9, 2014
Interboro Ins. Co. v Clennon, 2014 NY Slip Op 00092 (2d Dept. 2014)
While of course I am happy to have won, and, in addition, I can say I have written more IME/EUO no show briefs than I could ever imagine, this case leaves me with a “where are we going” feeling. I wrote the brief, argued the appeal and know the record, so this opinion – how it was written – was unexpected.
Should I now start filing in Nassau again? Well, it is across the street from my office and the filing rules are a lot more convenient than what I encounter at a Motion Support Part, Room 130. The clerks are nice there. For instance, a clerk in Supreme Queens told me today that there was no such thing as a hybrid Article 78/Dec action and started crossing out “Plaintiff” (next to petitioner) and “Defendant” (next to respondent) on my papers. I decided that I would file my memorandum of law on the return date in the Central Motion Part courtroom. I shrugged my shoulder since that was not the fight to pick.
So what did Clennon say:
“The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath . . . is a material breach of the policy, precluding recovery of the policy proceeds” (Argento v Aetna Casualty & Surety Co., 184 AD2d 487, 487-488; see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559).”
Argento does not mention preclusion. It solely states that failing to attend an EUO is fatal to the Claimant’s right of recovery under the policy. Then Unitrin is mentioned, which is what started this whole coverage storm. And Unitrin and all of the First Department cases I won that cite to it state that timeliness is irrelevant.
What was not mentioned? Westchester v. Lincoln. The court was well aware of that decision as it was in Appellant’s brief and mentioned during argument. This omission was no accident by the way.
Then the Court states this in one sentence: “Here, the plaintiff insurer established as a matter of law that it twice duly demanded an examination under oath from the appellants’ assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the plaintiff issued a timely denial of the claims arising from the appellants’ treatment of the assignor.”
Was the “timeliness” issue dicta? In other words, mention it so that way the Court did not have to unequivocally reach the Unitrin issue? I suspect this is what happened, and I truly believe that through arguing this case. I think the court passed the buck to the Appellate Term, Second Department, to see what they will do.
By analogy, do any of you remember when the Appellate Term, First Department in 2006 said: “Even assuming, without deciding, that a peer review report may suffice, without more, to establish a prima facie showing of lack of medical necessity” (Vladimir Zlatnick, M.D., P.C. v Travelers Indem. Co., 12 Misc.3d 128(A))? Now, Plaintiffs in the First Department on appeal depending on the case have to jump through hoops to beat back summary judgment on the issue of lack of medical necessity. I think this could be the beginning of the tide change, a slow one at that.
The only problem with my hypothesis is that inasmuch as so few failure to comply cases make it to the Appellate Division, Second Department, it will be many years before my hypothesis is proven correctly or incorrectly.
A few more tidbits. The Court accepted the same affidavit of mailing and no show that was accepted in Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc.3d 143(A) and Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146(A). This is similar to American Transit v. Lucas, where the Appellate Division, First Department, accepted a no-show affidavit that was between “I was there and he did not show” and the conclusory “I am a partner and I know he did not show”. So, Alrof is dead but W&Z is not revived. Something in the middle is the law. In addition, Defendant argued vigorously that my affidavit was not Alrof compliant, so the issue was squarely before the Court.
The court also found persuasive the argument that discovery was waived since there was no challenge to the propriety of the EUO notices during the claims verification sta ge.
I wish I could say there would be more of these cases being appealed to this Court, but this was my only Second Department case (from my 2010 inventory) and I was Respondent. I think Progressive files a lot of no-show DJ’s in Nassau?