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Malella and Attorneys fees May 25, 2017

Country-Wide Ins. Co. v Valdan Acupuncture, P.C., 2017 NY Slip Op 04068 (1st Dept. 2017)

(1) 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], 2010 NY Slip Op 51350[U] [App Term 2d Dept 2010]; Bath Med. Supply, Inc. v Allstate Indem. Co., 27 Misc 3d 92, 95 [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.”

(2) “Respondent is entitled to attorneys’ fees for this appeal (11 NYCRR 65-4.10(j)(4)), calculated, in accordance with 11 NYCRR 65-4.6(b), as 20% of the no-fault benefits awarded.”

This decision goes against Geico v. AAMG, which seems to imply an hourly fee for work in relation to an article 75.  This decision does not touch upon a de-novo action, which may or may not be subjection to an attorney fee in accordance with 4.6(b) viz 4.10(j)(4).

Also, precludable Mallela?  So much in a small case.

Business records again May 19, 2017

Cadlerock Joint Venture, L.P. v Trombley, 2017 NY Slip Op 03927 (2d Dept. 2017)

“Contrary to the Supreme Court’s determination, the plaintiff failed to demonstrate the admissibility of the records relied upon by its account officer under the business records exception to the hearsay rule (see CPLR 4518[a]), and thus, failed to establish a default in payment under the note. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” (Citibank, N.A. v Cabrera, 130 AD3d 861, 861). Here, the plaintiff’s account officer did not allege that she was personally familiar with HSBC’s record keeping practices and procedures, and thus failed to lay a proper foundation for the admission of records concerning the payment history under the note”

The assignee to the record cannot articulate how the assignor generated the note.

Hello Mrs. Collins May 19, 2017

State Farm Mut. Auto. Ins. Co. v RLC Med., P.C., 2017 NY Slip Op 03979 (2d Dept. 2017)

(1) “The plaintiff insurance company commenced this action against, among others, the defendant Estate of Ronald L.L. Collins, seeking a judgment declaring, inter alia, that the plaintiff has no obligation to pay no-fault claims for medical services purportedly rendered by Collins.”

(2) “It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims'” (D’Alessandro v Nassau Health Care Corp., 137 AD3d at 1196, quoting Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, [*2]421). Here, the plaintiff made no showing that conducting the deposition of the administrator will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims”

I am unsure what the administrator had to offer.  Since it is not an e-filed case and I am not going to Mineola to pull the file, I will never know.

 

Notice of Entry May 19, 2017

Wells Fargo Bank, N.A. v Frierson, 2017 NY Slip Op 03984 (2d Dept. 2017)

“”[I]t is axiomatic that before an order may be enforced, notice of such order must be given to the party against whom it is sought to be enforced” (Matter of Raes Pharm. v Perales, 181 AD2d 58, 62; see Holmes v Minnamon, 122 AD3d 1285). Thus, ” [w]here the rights of a party are or may be affected by an order, the successful moving party, in order to give validity to the order, [*2]is required to serve it on the adverse party'”

“Contrary to the defendant’s contention before the Supreme Court, the plaintiff’s failure to properly serve a copy of the summary judgment order with notice of entry did not render that order null and void (see CPLR 2004). However, since the plaintiff failed to establish that a copy of the summary judgment order with notice of entry was properly served upon the defendant, its motion to confirm the referee’s report and for a judgment of foreclosure and sale was properly denied on that ground”

This occurs in DJ practice.  The Appellate Term has held that the failure to serve an order with notice of entry is not fatal to the res judicata application.  I will not say this conflicts.  I would say, however, that a dismissal may not be warranted where Notice of Entry was never served.  But,  DJ order without Notice of Entry is clearly a defense to a no-fault action.  CPLR 2004.

Attorneys fees on a DJ May 19, 2017

Fiduciary Ins. Co. of Am. v Medical Diagnostic Servs., P.C., 2017 NY Slip Op 03888 (1st Dept. 2017)

“While an insured party may recover attorneys’ fees where it successfully defends against its insurer’s action seeking a declaratory judgment that it has no duty to defend or indemnify its insured (see Underwriters Ins. Co., 3 NY3d at 597; Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21 [1979]), “[t]he reasoning behind [the award of such attorneys’ fees] is that an insurer’s duty to defend an insured extends to the defense of any action arising out of the occurrence, including a defense against an insurer’s declaratory judgment action” (Underwriters Ins. Co., 3 NY3d at 597-598). Here, plaintiff owes defendant Star no duty to defend, as Star is merely seeking reimbursement for chiropractic services rendered to the claimant in this no-fault action. While Star was assigned the claimant’s rights for such reimbursement, the claimant was merely the injured party in the taxi at the time of the accident, and plaintiff owed no duty to defend the claimant. Star, as assignee of the claimant’s rights, could acquire no greater rights than its assignor (see New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592 [2011]), and did not acquire any right to a defense from plaintiff. Thus, the court properly held that Star was not entitled to attorneys’ fees in this case.”

What if Plaintiff owed a duty to defend the Assignor, i.e., Assignor was the driver of the taxi.  The record on appeal shows otherwise.  Does that change the scenario notwithstanding the fact that “Star is merely seeking reimbursement for chiropractic services rendered to the claimant in this no-fault action”?  I throw it out there because the decision is ambiguous.  “[The court] speaks with a forked tongue.”