Non-receipt defense prevailsOctober 13, 2016
Artzel, Inc. v Mercury Cas. Co., 2016 NY Slip Op 51437(U)(App. Term 2d Dept. 2016)
“[d]efendant moved for leave to renew its prior motion for summary judgment dismissing the complaint, which was based upon defendant’s non-receipt of the subject bill.”
The proof submitted by defendant in support of its motion was sufficient to demonstrate that defendant had not received the claim form at issue in this action. In the absence of evidence of plaintiff’s submission of the claim form at issue, defendant was entitled to summary judgment dismissing the complaint (see Meridian Acupuncture Care, P.C. v Mercury Cas. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50681[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v. Interboro Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]…
Here’s an interesting backstory here. The original motion and the copy served on opposing counsel had all the documents. The Court copy was missing the last page of the affidavit. The renewal was to fix the issue with the court copy. The non-receipt defense met with no affidavit of mailing and the eventual reversal on appeal.
I would call on OCA to expand mandatory e-filing to the Civil Courts. It is 2016 already. I have a small inventory and the amount of issues involving paper motions getting from the mail, to motion support, to Special Term and to the Appellate Term is plainly alarming. If a $35 or $45 motion fee could accomplish this goal, then it would be worth it. I think e-filing is the one thing in my 13 years of practice that I would say really is a great innovation of the court system. The worst aspect? Retention of Special Terms and other “specialized parts” that take away from the IAS system: One judge, One case.
The Westchester experiment? Dysfunction, hands down. The Supreme Kings CCP, Intake or DJMP part? Circus. The Supreme Queens CMP Part? No comment. My favorite is in the Supreme Kings JCP part – the cases are listed in Standards and Goal order.