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3212(a) time period applies when motion is served September 12, 2017

This is a no-brainer but one Plaintiff firm out there emphasizes that the 120 day rule in CPLR 3212(a) applies to when a motion is served.  Unsurprisingly, various judges have agreed with this nonsense.  This case directly states what all know: the time to file a motion is calculated from when the motion is served.

Finally, one parenthetical remark.  Why can’t we have e-filing in the Civil Courts?  It is embarrassing when New Jersey – with its byzantine ways of doing business – has made all their courts (Superior and Superior, Special Civil) e-filing while most of New York is still stuck in the mode of 1950’s file and the pray the clerk does not lose your motion.  OCA – do something already.

Mehulic v New York Downtown Hosp., 2017 NY Slip Op 06416 (1st Dept. 2017)

“The motion court properly deemed defendant’s summary judgment motion timely because it was made (that is, served) within 60 days after the filing of the note of issue, as per the court’s directive to the parties (CPLR 2211, 3212[a]; see Corchado v City of New York, 64 AD3d 429 [1st Dept 2009]).”

Is post-judgment interest in a no-fault case 24% per annum or 9% per annum? September 8, 2017

B.Z. Chiropractic, P.C. v Allstate Ins. Co., 2017 NY Slip Op 51091(U)(App. Term 2d Dept. 2017)

“A money judgment bears interest from the date of its entry (see CPLR 5003), and, generally, the interest accrues until the judgment is paid (see Matter of Matra Bldg. Corp. v [*2]Kucker, 19 AD3d 496 [2005]; Martin v Tafflock, 166 AD2d 635 [1990]). “Postjudgment interest is awarded as a penalty for the delayed payment of a judgment” (ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]). Contrary to defendant’s assertion, there is no evidence of actions or conduct by plaintiff which prevented defendant from paying the judgment (see ERHAL Holding Corp., 252 AD2d at 474; cf. Danielowich v PBL Dev., 292 AD2d 414 [2002]). Since plaintiff, as the prevailing party, was not required to make a demand for the money (see e.g. Feldman v Brodsky, 12 AD2d 347, 351 [1961]; Weinstein-Korn-Miller, NY Civ Prac ¶ 5003.01 [2d ed 2009]) and did not cause the delay in paying the judgment, the Civil Court erred in tolling the accrual of interest on the judgment. However, defendant demonstrated, through the submission of checks to plaintiff, which plaintiff had endorsed “without prejudice,” that defendant had partially paid the judgment and is, therefore, entitled to the entry of a partial satisfaction of judgment in the amount of $22,999.70 (see CPLR 5021 [a]). We note that, contrary to plaintiff’s position, postjudgment interest should be calculated pursuant to CPLR 5004 and not at the two percent per month rate provided for in 11 NYCRR 65-3.9 (a)

This case appears to conflict with:  Corona Hgts. Med., P.C. v Liberty Mut. Ins. Co., 32 Misc. 3d 8, 10 (App. Term 2d Dept. 2011)(“It is noted that plaintiff is not entitled to interest pursuant to the Civil Practice Law and Rules, since Insurance Law § 5106 (a) and the regulations promulgated thereunder supersede the provisions for interest contained in the CPLR”

Also, this case clashed with an older Second Department case (FYI: someone brought this one to my attention):  Matter of McMillan v. UnionAmerican Reinsurance Company, 70 AD2d 659 (2d Dept. 1979)(“Furthermore, the judgment properly provided that interest on the award continue to accrue at the rate of 2% per month “pursuant to statute”, rather than the legal rate of 6% Per annum specified in CPLR 5004.  CPLR 5004 expressly provides for the application of interest rates other than the legal rate of 6% per annum where otherwise provided by statute.  In the instance case, the interest rate of 2% per month applied by Special Term is prescribed by subdivision 1 of section 675 of the Insurance Law (see, also, 11 NYCRR 65.6[g][1]))”

I can understand the frustration that the court had about allowing old judgments to collect a large interest percentage (then compounded).  Clearly, the judgment clerk’s office should not be giving a better rate of return than what is obtained through the best investor out there.  Yet, the statute seems pretty clear and the Appellate Division, I think, hit this one on the head 38 years ago.

Mallela preservation September 8, 2017

K.O. Med., P.C. v USAA Cas. Ins. Co., 2017 NY Slip Op 51089(U)(App. Term 2d Dept. 2017)

Contrary to plaintiff’s argument, a “Mallela defense” need not be preserved in a timely denial (see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2017]; All Boro Psychological Servs., P.C., 39 Misc 3d 9; First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

This should be compared with relevant First-Department precedent: Country-Wide Ins. Co. v Valdan Acupuncture, P.C., 150 AD3d 560, 560-561 (1st Dept. 2017):

“Assuming without deciding that an insurer’s defense of fraudulent  incorporation cannot be precluded (see AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 958 N.Y.S.2d 59, 2010 NY Slip Op 51350[U] [App Term 2d Dept 2010]; Bath Med. Supply, Inc. v Allstate Indem. Co., 27 Misc 3d 92, 95, 902 N.Y.S.2d 875 [App Term 2d Dept 2010]), we conclude that the master arbitrator properly confirmed the award of the arbitrator, who reviewed petitioner’s submissions relating to the plea of guilty to no-fault insurance fraud by a man married to the owner of respondent, found that respondent was not mentioned once in the “hundreds of pages” submitted, and rejected petitioner’s attempt to hold the owner “responsible by association.”

The Civil King adjournment stipulation is not sacrosanct September 8, 2017

New Millennium Med. Imaging, P.C. v American Tr. Ins. Co., 2017 NY Slip Op 51088(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s contention on appeal, the Civil Court did not improvidently exercise its discretion in considering defendant’s late opposition papers (see CPLR 2004), which raised a triable issue of fact as to whether the claims had been timely denied.”

This is a good decision, especially since the Second Department case law (see my post from last month) encourages courts to exercise their discretion to extend the time to serve and file papers in the absence of prejudice.

Detailed search yields no insurance policy September 8, 2017

Compas Med., P.C. v Hereford Ins. Co., 2017 NY Slip Op 51083(U)(App. Term 2d Dept. 2017)

“In support of its cross motion and in opposition to plaintiff’s motion, defendant submitted an affidavit by its employee who described the details of a record search she had performed and stated that her search had revealed that there was no relevant Hereford Insurance Company policy in effect on the date of the accident in question. We find that defendant’s affidavit was sufficient to demonstrate, prima facie, that plaintiff’s claim did not arise out of a covered incident.”

My sense is that Hereford may have been the WC carrier?  Or was this just a stab in the dark that Hereford was the no-fault carrier?