This one gave me pause September 15, 2018

Matter of MAPFRE Ins. Co. of NY v Callahan,  2018 NY Slip Op 06016 (2d Dept 2018)


“The Supreme Court ordered a framed-issue hearing to resolve the various issues raised by MAPFRE. Following a lengthy period of delay during which numerous adjournments of the hearing were granted, the matter was marked final and scheduled to be heard on May 19, 2016. MAPFRE’s counsel and a witness for MAPFRE appeared for the hearing. Callahan failed to appear on that date, despite having been subpoenaed. Moreover, although her attorney answered the calendar call that morning and indicated his readiness to proceed, he did not appear when the court convened the hearing less than two hours later, despite his receipt of text messages from opposing counsel requesting his presence, and he did not advise the court in advance that he might be delayed due to appearances on other matters. The court granted the petition on Callahan’s default and subsequently denied her motion pursuant to CPLR 5015(a)(1) to vacate the default.”

This is the decision denying vacatur of the order.  Maybe I am getting too soft in my second decade of practicing because I would probably have not taken the default or consented to vacate the order if the facts as presented by Respondent in his order to show cause are true.  But I cannot necessarily fault Petitioner’s counsel since he was sitting there for two hours twitting his thumbs after being sent out, and he was probably pissed as he had other things to do that day.  It is a judgment call and, again, I hate to see other attorneys get jammed up for stuff like this.

For what its worth, I think my second employer would have fired me if I did not take the default in this situation.  Thus,  I cannot even pretend to tell you the reader what the right answer is in this case.

But let this be a lesson and I am taking note here that if you have to run around Court or various courts (heaven knows we all do) and you have a hearing, tell the part clerk you have three other things.  That looks to be the difference in this case as to why the OSC was not grated.


A second affidavit to clarify is allowed August 23, 2018

Cuevas v Baruti Constr. Corp., 2018 NY Slip Op 05905 (1st Dept. 2018)

“The motion court properly accepted Veras’s second, clarifying affidavit in plaintiff’s submission on reply. The second affidavit merely amplified the factual recitation set forth in Veras’s initial affidavit, which had been procured and drafted by the defense and omitted the pertinent detail that the workers were actually in the process of lowering the machine from the roof, and not engaged in pushing it across the flat roof, when the accident occurred. Veras’s second affidavit was a proper response to defendant’s submission, and did not contradict the statement in his first affidavit (see Cox v McCormick Farms, 144 AD3d 1533 [4th Dept 2016] [where question was not directly asked in deposition, proper to consider subsequent affidavit providing greater specificity without directly contradicting deposition testimony]; Severino v 157 Broadway Assoc., LLC, 84 AD3d 505 [1st Dept 2011] [same]). Nor could Veras’s second affidavit be rejected as raising a feigned issue of fact (see Sutin v Pawlus, 105 AD3d 1293 [3d Dept 2013]; Kalt v Ritman, 21 AD3d 321 [1st Dept 2005]), especially since it comported with all of the other eyewitness testimony in the case, as well as with Veras’s own early unsworn statement, and explained the ambiguity arising from the omission of additional details in his first affidavit.”

When is reargument granted? August 23, 2018

Budoff v City of New York, 2018 NY Slip Op 05817 (2d Dept. 2018)

“As the Supreme Court reviewed the merits of the plaintiff’s contentions raised in his motion for leave to reargue, “the court, in effect, granted reargument and adhered to its original determination”…

An unsigned OSC on appeal – procedure. August 23, 2018

Gluck v Hirsch, 2018 NY Slip Op 05828 (2d Dept. 2018)

“After oral argument, the court declined to sign the proposed order to show cause, with a handwritten notation that the Hirsches failed to demonstrate a meritorious defense to the action and that the Hirsches failed to submit proof of misconduct by the plaintiff’s attorney.

By decision and order on motion dated December 22, 2015, this Court granted the Hirsches leave to appeal from the Supreme Court’s order declining to sign the proposed order to show cause and stayed the foreclosure sale of the subject premises pending the hearing and determination of the appeal (see Gluck v Hirsch, 2015 NY Slip Op 94403[U]).

“The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein” (CPLR 2214[d]). Whether the circumstances constitute a “proper case” for the use of an order to show cause instead of a notice of motion is a matter within the discretion of the court to which the proposed order is presented (see [*2]Siegel, NY Prac § 248 [5th ed, 2011]). Here, under the particular circumstances of this case, this was a proper case for the use of an order to show cause, and the Supreme Court improvidently exercised its discretion in declining to sign the proposed order to show cause (see Matter of Georghakis v Matarazzo, 123 AD3d 711, 711).”

I post this because generally, the remedy for an unsigned OSC is to bring the application to the Appellate Division (CPLR 5704[a]) or Appellate Term (CPLR 5704[b]).  Here, because the Court ruled on the merits of the OSC without any responsive papers, the declined OSC became an order on motion not on notice, requiring leave.


Policy Exhaustion goes to Madison Avenue/Someone from the Insurance Defense side should be putting in Amicu August 23, 2018

Ameriprise Insurance Company v Kensington Radiology Group, P.C,  2018 NYSlipOp 80613(U)(1st Dept. 2018)

Respondent having moved for leave to appeal to this Court from the decision and order of the Appellate Term entered in the office of the Clerk of the Supreme Court, New York County, on or about December 22, 2017, Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,It is ordered that the motion is granted. Respondent-appellant shall file two copies of the pre-argument statement and of this order with the Clerk of the Appellate Term with proof of service, pursuant to Section 600.17 of the Rules of this Court.

Underlying Decision

Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 58 Misc. 3d 144(A)(App. Term 1st Dept. 2017)

Petitioner appeals from an order and judgment of the Civil Court of the City of New York, New York County (Erika M. Edwards, J.), entered on or about November 30, 2016, which denied its petition to vacate an arbitration award in favor of respondent, awarding it unpaid no-fault benefits in the principal sum of $3,548.01, and confirmed the arbitration award.

Per Curiam.

Order and judgment (Erika M. Edwards, J.), entered November 30, 2016, reversed, without costs, and matter remanded to Civil Court for a framed issue hearing regarding whether the $50,000 policy limit of the subject insurance policy was exhausted before petitioner became obligated to pay respondent’s claim.

When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co. v Sawh, 272 AD2d 245, 708 N.Y.S.2d 862 [2000]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30—day period (New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580, 786 N.Y.S.2d 68 [2004]), and an arbitrator’s award directing payment in excess of the $50,000 limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur [*2]  of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 822-823, 699 N.E.2d 414, 677 N.Y.S.2d 55 [1998]; Countrywide Ins. Co. v Sawh, 272 AD2d at 245; 11 NYCRR 65-1.1).

Here, petitioner-insurer’s submissions in support of its petition to vacate the arbitration award – including an attorney’s affirmation, the policy declaration page showing the $50,000 limit and a payment ledger listing in chronological order the dates the claims by various providers were received and paid – raised triable issues as to whether the $50,000 policy limit had been exhausted by payments of no fault benefits to respondent and other providers before petitioner became obligated to pay the claims at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 41 N.Y.S.3d 448, 2016 NY Slip Op 50828[U] [App Term, 1st Dept 2016]; Allstate Ins. Co. v DeMoura, 30 Misc 3d 145[A], 926 N.Y.S.2d 342, 2011 NY Slip Op 50430[U] [App Term, 1st Dept 2011]).  [**2] Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue.


Please Help

If you represent no-fault carriers and do not want the Second Department priority of payment rule to be the law of the State, file an Amicus with the First Department.  Your help is absolutely required.  Without your help, the wind may very well determine the outcome of this issue.  Is that what you want?

Note:  We all can live with Harmonic v. Praetorian.  For the most part, it is a fair balance and leaves everybody unhappy.  It balances priority of payment with reality.  That said,  we CANNOT live with Alleviation v. Allstate.
Unfortunately, I do not have the papers so I cannot even send them to you if you ask .  I assume you can obtain the papers from the New York County Civil Court’s clerk’s office.  Perhaps if you contact Ameriprise’s counsel, they will provide the same to you?
Since this appeal will be heard before the Second Department Alleviation battle, this case may become dispositive of the issue.