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The plight of Chimps June 10, 2017

Matter of Nonhuman Rights Project, Inc. v Lavery,  2017 NY Slip Op 04574 (1st Dept. 2017)

(1) “The gravamen of petitioner’s argument that chimpanzees are entitled to habeas relief is that the human-like characteristics of chimpanzees render them “persons” for purposes of CPLR article 70. This position is without legal support or legal precedent.”

(2) “The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions. Petitioner does not suggest that any chimpanzee charged with a crime in New York could be deemed fit to proceed, i.e., to have the “capacity to understand the proceedings against him or to assist in his own defense”

(3) “While petitioner’s avowed mission is certainly laudable, the according of any fundamental legal rights to animals, including entitlement to habeas relief, is an issue better suited to the legislative process”

IME no show trial defense – reversed June 10, 2017

Progressive Orthopedics, PLLC v Hertz Corp., 2017 NY Slip Op 27193 (App. Term 2d Dept. 2017)

(1) “The Civil Court did not allow defendant to present any evidence in support of its defense that plaintiff’s assignor had failed to appear for duly scheduled IMEs, which would constitute a failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), because the court held that a prior order of the same court (Wavny Toussaint, J.), which had denied defendant’s summary judgment motion based on that failure to appear, had already determined that defendant could not establish that defense.”

(2) As per Vitality Chiropractic, P.C., the denial of a motion for summary judgment in and of itself establishes nothing

(3) Decision reversed

Policy Exhaustion (again) must comport with the priority of payment regimen June 10, 2017

Ortho Passive Motion, Inc. v Allstate Ins. Co., 2017 NY Slip Op 50771(U)(App. Term 2d Dept. 2017)

(1) “Following a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Lisa S. Ottley, J.) awarded plaintiff a judgment in the principal sum of $2,114.50. The court noted that the parties had stipulated that, among other things, defendant had timely denied the claims at issue. The judgment was entered on March 3, 2014. Eight months later, defendant moved, insofar as is relevant to this appeal, pursuant to CPLR 5019 (a) and 5240, to modify the judgment on the ground that the coverage limits of the insurance policy had been exhausted. Plaintiff opposed the motion. Defendant appeals from so much of an order of the Civil Court entered July 6, 2015 as denied defendant’s motion.”

(2) “In support of its motion, defendant argued that there are no funds available to pay the judgment because the $50,000 policy limit in basic personal injury protection had been exhausted. Assuming, arguendo, that such contention, if established, would entitle defendant to some form of postjudgment relief (see e.g. CPLR 5015 [a]), we find that, in any event, defendant’s motion papers failed to establish an exhaustion of the coverage limits of the insurance policy at issue, as defendant failed to demonstrate that the policy had been exhausted at the time the claims at issue were deemed complete (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007])”

[Court discusses that 5019(a) and 5240 are not a valid basis to vacate judgment]

This case does not establish a set of facts engendering sympathy.  Allstate should have known the policy was exhausted when the trial occurred (this would not change the outcome but it could have avoided procedural nuances that make this case problematic outside the substantive issue).  Assuming the policy exhausted after entry of judgment, then Allstate really messed up since they knew they had or would receive a judgment.  Looks like a bad set of facts.

Wrong subdivision in traffic ticket still actionable June 10, 2017

People v Husain (Shanzeb), 2017 NY Slip Op 27195 (App. Term 2d Dept. 2017)

“It has been held that where an information charges a violation of the wrong section of a statute, this may be disregarded as surplusage if the information fully advises the defendant of the acts relied upon to constitute the alleged violation, and if the acts charged are clearly referable to the offense of which the defendant has been convicted. . . . All that is necessary is that the information shall state the crime charged with such accuracy that the defendant may know the [*2]offense which it is claimed he has committed” (People v Love, 306 NY 18, 23 [1953]). Further, as a general rule, “misnomers” in designating the offense charged are not jurisdictional and may be corrected by amendment”

Every client will tell you that the “traffic ticket has an error” and it must be dismissed.  Tell the client: not necessarily.

Party does not have a basis to use CPLR 321(c) as a sword against now unrepresented party June 10, 2017

Lion Button Co. v Jachs NY, LLC, 2017 NY Slip Op 50773(U)(App. Term 2d Dept. 2017)

(1) ” Under the terms of the stipulation, defendant agreed to pay plaintiff $1,100 by a date certain in settlement of the action, failing which plaintiff would give defendant written notice of its default, whereupon defendant would have seven days to cure its default. In the event that defendant failed to cure its default, plaintiff would be entitled to enter judgment against defendant for the full amount demanded in the complaint, plus interest, costs and disbursements. Four days before the stipulated payment due date, plaintiff moved to vacate the stipulation of settlement and to restore the matter to the trial calendar, on the ground that defendant, which is a limited liability company, had not been represented by counsel when it had entered into the stipulation of settlement.”

(2) “We do not consider plaintiff’s argument, made for the first time on appeal, that, under CPLR 321 (c), the action should automatically have been stayed following the death of defendant’s attorney, and that the stipulation the parties entered into was therefore a nullity, since the purpose of CPLR 321 (c) is to protect a litigant who has been deprived of counsel through no fault of his own (see Moray v Koven & Krause, Esqs., 15 NY3d 384, 389 [2010]), and not to be used, after the fact, as a sword by a litigant which was not even potentially prejudiced by its adversary’s lack of counsel.

Sometimes, we see arguments made regarding CPLR 321(c) when there is a wholesale change in counsel.  The Court’s viewpoint is that CPLR 321(c) is not to be used as a sword against an unrepresented party.