Failure to review actual images insufficient to defeat causation MSJ August 10, 2017

Aliosha v Ostad, 2017 NY Slip Op 06055 (2d Dept. 2017)

“In attempting to refute the opinion of the defendant’s expert regarding good blood flow to the right testicle, the plaintiff’s expert did not actually review the ultrasound images on which the defendant’s expert opinion was based, but reviewed only the ultrasound report”

The case came down to proximate cause and the Court found proofs to be insufficient based upon the failure to review the actual films.  Interesting.

Fraudulent procurement defense not substantiated August 10, 2017

Quality Med. Care, PC v Progressive Cas. Ins. Co., 2017 NY Slip Op 50999(U)(Civ. Ct. Bronx Co. 2017)

I read this and I think the Court missed the issue, yet arrived at the result it should have.  First issue: a material misrepresentation defense (Ins Law 3105) does not require an intentional misrepresentation.  That said, second issue: proof must be adduced as to the rate difference,  Third issue: assuming it is not an AIP policy (statutory rates).  the underwriting manual must be entered into evidence.

The Court got lost on issue one and briefly addressed issue two (but never ruled on it) and failed to address issue three.

Too many moving pieces on these cases.

Point one: “The record is devoid of what actions, if any, the defendant took in regards to Ms. Murphy’s automobile insurance policy after having actual knowledge that she was residing in Jamaica, New York. Apparently, the defendant subsequent to the automobile accident decided to disclaim payment of Ms. Murphy’s medical bills on the purported basis that at the time the application for insurance was submitted by her that she provided a false residential address.”

Not a real issue.  Estoppel  is generally not a defense to a fraudulent procurement defense.  Perhaps now it is?  There is no case law on the topic.

Second issue: “there is no evidence attesting to her intent”  Irrelevant.

No testimony as to the rate difference:  “The best that this court can surmise, is that there must be a price differential in the policy premiums charged in Rochester, New York and Jamaica, New York, with the latter premiums being higher as this appears to be the motive attributed by defendant to the plaintiff’s assignor”

That is all she wrote on this one.


Service! August 10, 2017

Global Liberty Ins. Co. v Surgery Ctr. of Oradell, LLC,  2017 NY Slip Op 06065 (2d Dept. 2017)

I am sure many of you out there have process servers engaging in BLC 307 and LLC 304 service who are not following all of the steps required to effectuate proper service.  This is my second time at the rodeo so shame on me.  This partner messed up again…

Service can be  as difficult as solving a rule against perpetuities question in first year property class.  That said, the Court has now told all of you what must be done EXACTLY to effectuate service.

On my end, I told the process servers what they need to do and demanded refunds for cases that need to be refiled.  On your end (the reader), DO NOT repeat my mistakes.  You have been warned.  Here are the rules:

“First, service upon the unauthorized foreign limited liability company may be made by personal delivery of the summons and complaint, with the appropriate fee, to the Secretary of State (see Limited Liability Company Law § 304[b]). Second, in order for the personal delivery to the Secretary of State to be “sufficient,” the plaintiff must also give the defendant direct notice of its delivery of the process to the Secretary of State, along with a copy of the process. The direct notice may be sent to the defendant by registered mail, return receipt requested, to the defendant’s last known address (see Limited Liability Company Law § 304[c][2]). Third, after process has been delivered to the Secretary of State and direct notice of that service has been sent to the defendant, the plaintiff must file proof of service with the clerk of the court. That proof of service must be in the form of an “affidavit of compliance.” The affidavit of compliance must be filed with the return receipt within 30 days after the plaintiff [*2]has received the return receipt from the post office. Service of process shall be complete 10 days after the affidavit of compliance has been filed with the clerk with a copy of the summons and complaint (Limited Liability Company Law § 304[c][2]). Strict compliance with Limited Liability Company Law § 304 is required, including as to the filing of an “affidavit of compliance”

What is an affidavit of compliance?  Good question, because that is what was not uploaded in Global.  This is what one looks like (modify for proper service type):

Affidavit of compliance

Have a happy Thursday.

CPLR 2004 offers some relief to the dreaded Civil Kings motion stip August 7, 2017

Calderone v Molloy Coll., 2017 NY Slip Op 05932 (2d Dept. 2017)


On June 4, 2015, the return date of the NCAA’s motion, the plaintiff attempted to file a stipulation signed by the NCAA’s counsel, [*2]among others, agreeing to adjourn the return date and extend the plaintiff’s time to submit opposition papers. Later on June 4, 2015, the Supreme Court rejected the stipulation and marked the NCAA’s motion fully submitted without opposition. That night, the plaintiff’s counsel e-filed the opposition papers with the court. Four days after the return date, on June 8, 2015, the plaintiff moved, in effect, pursuant to CPLR 2004 to extend his time to submit opposition papers to the NCAA’s motion. The NCAA did not oppose the plaintiff’s motion. In an order dated June 25, 2015, the court denied the plaintiff’s motion on the ground that he failed to follow the motion schedule set by the court’s rules


CPLR 2004 provides that, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” In considering a motion for an extension of time, “the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit” (Tewari v Tsoutsouras, 75 NY2d 1, 12; see Matter of Village of Haverstraw v Ray Riv. Co., 137 AD3d 800, 801).

Here, the plaintiff established good cause for an extension of his time to submit opposition papers to the NCAA’s motion given the brief and unintentional delay, the lack of prejudice to the NCAA, the existence of potentially meritorious defenses to the NCAA’s motion, and “the policy favoring the resolution of cases on their merits” (Nikita v Parfomak, 43 AD3d 892, 893; see Matter of Village of Haverstraw v Ray Riv. Co., 137 AD3d at 801-802; Siracusa v Fitterman, 110 AD3d 1055, 1056-1057; Associates First Capital v Crabill, 51 AD3d 1186, 1188).

Accordingly, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion, in effect, pursuant to CPLR 2004 to extend his time to submit opposition papers to the NCAA’s motion, and the order dated June 26, 2015, which consequently was entered upon the plaintiff’s default, must be vacated

The Second Department is notorious for not vacating defaults unless the “reasonable excuse” is highly detailed.  The Court, as I sensed, is significantly more empathetic to a party who breaches a briefing schedule, but moves to have the paper accepted.  This is significant to the practitioner that gets ensnared in one of those briefing stipulations,.

Lost wages not proven within a reasonable degree of certainty. July 31, 2017

Freligh v Government Empls. Ins. Co., 2017 NY Slip Op 05911 (3d Dept. 2017)

Admittedly, I like the issue of lost wages.  I am convinced few practitioners understand all the nuances involved – I will not say more.  It is clearly an undeveloped area of no-fault law and seemingly all over the place.  Perhaps that is why I  bring these actions or arbitration – they are intellectually entertaining at times.

A firm upstate I tried a case involving medical bills (one week jury trial in Kingston) leads the charge on these cases.  Their results are quite good.   This one ended in a 3-2 decision ending in dismissal.  I hope Derek takes it up to the Court of Appeals, because it looks like a fascinating case.

The cliff-notes version of this case is that the EIP was unemployed when the accident occurred.  Prior to the accident, he was offered a job to run a parts plant.  He was unable to do so because of his accident.  The EIP projected a certain income on his claim forms.

The defense and the basis for summary judgment was that the job opportunity was a farse.  Various pieces of evidence, including documentary, deposition and FOIL responses proved (in the eyes of the Court) that the sought after job opportunity was unreasonable as a matter of law and Plaintiff’s claim of income at this job lacked legal merit.  The Court reversed Supreme Court and dismissed the complaint.

The dissent stated viewing the evidence in the light most favorable to the non-moving party, a rational fact finder could find the job opportunity legitimate and would have affirmed.

If this goes to the Court of Appeal, it is hard to figure out where they will go with this one.