New evidence used in reply – an angry court appearsFebruary 10, 2018
Matter of Hereford Ins. Co. v Vazquez, 2018 NY Slip Op 00909 (1st Dept. 2018)
“In reply, Hereford submitted documents demonstrating that the Mercedes had been sold to Lyons three days before the accident, and insured by State Farm under the same policy number previously identified, effective the same date.
Absent any surprise or prejudice to State Farm, which was aware that Hereford alleged that it had insured the Mercedes under a specified policy and which did not seek to submit a surreply, the motion court providently exercised its discretion in considering the documents submitted by Hereford in reply (see Matter of Kennelly v Mobius Realty Holdings, LLC, 33 AD3d 380, 381-382 [1st Dept 2006]; Kelsol Diamond Co. v Stuart Lerner, Inc., 286 AD2d 586, 587 [1st Dept 2001]; Jones v Geoghan, 61 AD3d 638, 640 [2d Dept 2009]). Notably, Hereford could have sought leave to amend the petition based on the same documents, leading to the same outcome (see Matter of Allcity Ins. Co. [Russo], 199 AD2d 88 [1st Dept 1993]; see also Matter of Government Empls. Ins. Co. v Albino, 91 AD3d 870, 871 [2d Dept 2012]).
Since Hereford met its burden of showing “sufficient evidentiary facts” to establish a “genuine preliminary issue” justifying the stay, the motion court properly stayed arbitration [*2]pending a trial of the threshold issue of coverage”
This is the definition of the “I got you appeal” because you missed something in your moving papers that were remedied in your reply papers which the movant knew about. On a more wholesale level, this type of case bespeaks how uncivilized the practice of law has become. It has become more about trying to hurt your opponent on procedural niceties (thereby winning) than resolving cases on the merits. As people, we should evolve. I was going through an opp that violated 2106 a few months ago. you know what I did? Emailed the plaintiff and told him to fix it.
I am sad the carrier is going to pay counsel for this appeal or even allowed this appeal to go forward. Hereford is not an evil or malicious carrier. Anyway, this type of win at all costs brought us Unitrin v. NY Medical. Same firm on both cases – anomaly? Karma has a way of catching up with us.