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When the trial court in a bench trial does not assess credibility November 3, 2019

Matter of State of New York v Jesus H., 2019 NY Slip Op 07858 (1st Dept. 2019)

(1) ” With regard to the appropriate scope of this Court’s review on this appeal, it is well settled that as to the review of a judgment following a nonjury trial, this Court’s “authority is as [*2]broad as that of the trial court” and that “as to a bench trial [the Appellate Division] may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses” (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983] [internal quotation marks omitted]; Green v William Penn Life Ins. Co. of N.Y., 74 AD3d 570, 571 [1st Dept 2010, Saxe, J., concurring]). “

(2) “Supreme Court is owed no deference in light of its lack of explanation or indication as to why it declined to credit the expert testimony underlying the diagnoses, while crediting the same experts’ diagnosis of ASPD (see e.g. Bernard v State of New York, 34 AD3d 1065, 1067 [3d Dept 2006] [where a trial court “did not resolve issues of credibility, no deference is owed”])

So for the appeals writers in my audience, this case will often give you the standard of review necessary seek reversal in an un-rebutted expert bench trial.

Discovery of the first-party file November 3, 2019

Dabo v One Hudson Yards Owner, LLC, 2019 NY Slip Op 07751 (1st Dept. 2019)

“Documents in an insurer’s claim file, including an accident investigation report, that were prepared for litigation against its insured are immune from disclosure (see CPLR 3101[d][2]; Recant v Harwood, 222 AD2d 372, 373-374 [1st Dept 1995]). Although documents in a first-party insurance action prepared in an insurer’s ordinary course of business in investigating whether to accept or reject coverage are discoverable (see CPLR 3101[g]; Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [2005]), there is no indication that such documents are being protected here.”

The lack of value of a notice of appearance November 3, 2019

JP Morgan Chase Bank, N.A. v Jacobowitz, 2019 NY Slip Op 07773 (2d Dept. 2019)

Remember: when you answer, the CPLR gives you 60 days to move to dismiss on personal jurisdiction or you are out of the box. Filing a notice of appearance sans answer will not subvert the CPLR. It is a cute strategy but the Courts frown on lack of personal jurisdiction application.

” It is immaterial that the notice of appearance, in addition to requesting that all papers in the action be served on the defendants’ counsel, stated that “[t]he Defendants do not waive any jurisdictional defenses by reason of the within appearance.” This language is not a talisman to protect the defendants from their failure to take timely and appropriate action to preserve their defense of lack of personal jurisdiction. The defendants did not move to dismiss the complaint insofar as asserted against them on the ground of lack of personal jurisdiction until January 2016, more than 10 months after filing the notice of appearance. Under these circumstances, the defendants waived any claim that the Supreme Court lacked personal jurisdiction over them in this action.”

Mailing November 3, 2019

M&T Bank v Biordi, 2019 NY Slip Op 07775 (2d Dept. 2019)

The irony – and I have commented on this before – is that the great Appellate Term mailing debates have transitioned to Appellate Division mailing debates as RPAPL 1304 has spawned an incredible amount of litigation in the mortgage context.

“Attached to the affidavit were copies of 90-day notices, bearing indicia of mailing by certified mail, but not first-class mail, and bearing no postmark or date of mailing. The plaintiff additionally submitted an affidavit of mailing of an Assistant Treasurer/Manager of Hudson City, who attested to the mailing of 90-day notices by first-class and certified mail, but did not attest to personal knowledge of the mailing and did not set forth any details regarding Hudson City’s mailing practices or procedures. Since the plaintiff failed to provide evidence of the actual mailing, or evidence of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304 “

Additional Verification October 26, 2019

New Horizon Surgical Ctr., LLC v Travelers Ins. Co., 2019 NY Slip Op 51690(U)(App. Term 2d Dept. 2019)

“Contrary to plaintiff’s contention, defendant was not required to pay or deny plaintiff’s claims upon receipt of a “partial response” to defendant’s verification requests (see 11 NYCRR [*2]65-3.8 [a] [1]; [b] [3]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004] [“A claim need not be paid or denied until all demanded verification is provided”]).”

Two thoughts here. First, how do we justify the Rybak general compliance affidavit? Second, how do arbitrators still hold in the general sense that an objection letter or “communication” must be responded in order to continue the toll. The Court is clear – provide it or lose.

I can see two exceptions to the second point. First, a response that says we do not have it is a complete response. Second, a response that objects because the sought after verification is palpable improper. I must assume this case fits under exception two. Maybe the Court found the demand reasonable? The problem is like the definition of medical necessity, the appeals courts have not given us guidance of where the reasonableness line (if it even exists) is drawn.