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Laches – remember that word? February 21, 2020

Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co., 2020 NY Slip Op 50238(U)(App. Term 2d Dept. 2020)

“[A] court ‘ha[s] no power whatsoever’ to dismiss an action for gross laches or failure to prosecute in the absence of a 90-day demand to serve and file a [notice of trial]” (Arroyo v Board of Educ. of City of NY, 110 AD3d 17, 20 [2013], quoting Hodge v New York City Tr. Auth., 273 AD2d 42, 43 [2000]; see also Chase v Scavuzzo, 87 NY2d 228 [1995]; General Assur. Co. v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and “the doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216 (b)” (Arroyo, 110 AD3d at 20; see also Montalvo v Mumpus Restorations, Inc., 110 AD3d 1045 [2013]). As defendant does not claim to have served a demand pursuant to CPLR 3216, it was error for the Civil Court to grant the branch of defendant’s motion seeking to dismiss the complaint based on laches.



IME excuse without personal knowledge February 21, 2020

Medcare Supply, Inc. v Global Liberty Ins., 2020 NY Slip Op 50231(U) (1st Dept. 2020)

” Defendant’s moving papers demonstrated, prima facie, that defendant had timely mailed both the IME scheduling letters and the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In opposition, plaintiff proffered an affirmation by its assignor’s counsel, who did not assert that she possessed personal knowledge of the facts. Consequently, plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]). “

In this case, the attorney for the Assignor signed an affirmation explaining why her client failed to attend the IMEs. The court found this insufficient. Perhaps, Plaintiff would have had better luck in arbitration where the rules of evidence do not apply?

Calendar service did not transmit the adjournment stipulation February 14, 2020

Singh v Sukhu, 2020 NY Slip Op 01105 (2d Dept. 2020)

The Central Motion Part of the Supreme Court set a briefing schedule requiring that the plaintiff’s opposition papers be served by August 19, 2016. The plaintiff, unaware of the briefing schedule, served her opposition papers seven business days before the September 2, 2016, return date in accordance with CPLR 2214(b). On the return date, the plaintiff’s opposition was rejected as untimely. In an order entered September 20, 2016, the Supreme Court granted the DNJC defendants’ motion for summary judgment, noting that the plaintiff did not oppose the motion…

Here, the plaintiff demonstrated a reasonable excuse for her default. The affirmation of her attorney explained that the plaintiff’s default was reasonable and inadvertent due to the fact that the attorney’s “calender service” never communicated the briefing schedule to counsel’s office and that counsel first learned of the August 19, 2016, date when it attempted to file the opposition papers only six days later (see Bank of N.Y. Mellon v Faragalla, 174 AD3d 677).”

Policy exhaustion February 12, 2020

Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 2020 NY Slip Op 00500 (1st Dept. 2020)

“Respondent contends that its claims were complete before the policy issued by petitioner was exhausted. This argument is unavailing. The Court of Appeals has interpreted the word “claims” in 11 NYCRR 65-3.15 to mean “verified claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]), i.e., claims as to which the healthcare provider has submitted additional information requested by the insurer (see id. at 297-298, 300-301). Petitioner requested verification in the form of an examination under oath (EUO). Since respondent never appeared for an EUO, its claims were never verified. The defense that an award exceeds an arbitrator’s power is so important that a party may introduce evidence for the first time when the other party tries to confirm the award (see Brijmohan, 92 NY2d at 822-823).

Respondent may also raise on appeal the purely legal argument that Appellate Term lacked the power to remand to Civil Court for a framed issue hearing (see generally Branham v Loews Orpheum Cinemas, Inc., 31 AD3d 319, 323 n 2 [1st Dept 2006], affd 8 NY3d 931 [2007]). On the merits, however, this argument is unavailing (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 2016 NY Slip Op 50828[U], 51 Misc 3d 149[A] [Appellate Term, 1st Dept, 2016]; Allstate Ins. Co. v DeMoura, 2011 NY Slip Op 50430[U], 30 Misc 3d [*2]145[A] [Appellate Term, 1st Dept, 2011]).”

So in this case, the question on remand will be whether the EUO’s were properly scheduled. The failure here will mean the claims were complete prior to the EUO defaults when there may have been money remaining on the policy. The basis here is that the EIP attender his EUO but the provider defaulted. Measuring the provider EUO against the bill, it was more than 15-business days from its receipt. Measuring the provider EUO letter from the EIP EUO, it was more than 15-days from this date. So the framed issue will be interesting when it all shakes out.

But the important holding here is that this Court is not advocating the proposition that exhaustion is unconditional. The Court is applying 3.15, which would mean, in essence, that this Court may follow the Appellate Term Alleviation line of cases.

DJ following a default February 12, 2020

Actual Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y., 2020 NY Slip Op 50185(U)(App. Term 2d Dept. 2020)

“On the instant appeal, defendant has annexed to its brief an order of the Supreme Court, Bronx County, entered February 9, 2018, which held, among other things, that all civil lawsuits, judgments and other proceedings “that have been brought or may be brought by . . . Actual [*2]Chiropractic, P.C.” seeking no-fault benefits under the same claim number and regarding the same assignor and motor vehicle accident as in the case at bar are permanently stayed. As a court may take judicial notice “on appeal, of reliable documents, the existence and accuracy of which are not disputed” and, generally, “of matters of public record” (Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]; see Headley v New York City Tr. Auth., 100 AD3d 700 [2012]), this court, in the interest of judicial economy, takes judicial notice of the Supreme Court’s order entered February 9, 2018, which permanently “stays” the parties from proceeding further in the action at bar.

In light of the stay issued by the Supreme Court, this appeal has “been rendered academic as any determination on [this] appeal[ ] would not, under the facts of this case, have a direct effect upon the parties” (Matter of Claudia G. [Ermelio G.], 71 AD3d 894, 895 [2010]).”