Blog

Material Misrepresentation defense September 25, 2020

Alignment Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 2020 NY Slip Op 50994(U)(App. Term 2d Dept. 2020)

“A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented. To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011] [internal quotation marks and citations omitted])”

“Upon a review of the record, we find that defendant failed to establish as a matter of law that it would not have issued the policy in question. Consequently, defendant did not demonstrate, prima facie, that the misrepresentation by plaintiff’s assignor was material”

It is so interesting how the fraudulent procurement defense transformed itself into the material misrepresentation defense”

Retroactive rescission September 25, 2020

Omphil Care, Inc. v Pearl Holding Group Managing Gen. Agent for Ocean Harbor Cas. Ins. Co. 2020 NY Slip Op 50946(U)(App. Term 2d Dept. 2020)

“It is undisputed by the parties that Florida law applies. Inasmuch as defendant’s cross motion papers demonstrated that a rescission notice was sent to the insured, and that defendant had returned, or tendered, all premiums paid to the insured within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant established, prima facie, that it had voided the policy ab initio pursuant to Florida law (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]).”

I love how attorneys when told Florida law applies do not put in any effort in to beating back the Defendant’s motion. Has anyone checked out what a Florida attorney fee in a PIP case is?

Discussion on defaults/appearances July 30, 2020

Deutsche Bank Natl. Trust Co. v Hall, 2020 NY Slip Op 04292 (2d Dept. 2020)

As relevant here, “[a]n action is commenced by filing a summons and complaint” (CPLR 304[a]). “A plaintiff appears in an action merely by bringing it” (Siegel & Connors, NY Prac § 110 [6th ed Dec. 2019 Update]). “The defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer” (CPLR [*2]320[a]). Where, as here, service was effected pursuant to CPLR 308(2), “the [defendant’s] appearance shall be made within thirty days after service is complete” (CPLR 320[a]; see CPLR 3012[c]).

“After having been served with process, the defendant who wants to avoid a default must respond in a proper and timely manner” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1). “Subdivision (a) of CPLR 320 specifies three ways by which the defendant can appear in the action: (1) service of an answer; (2) making a motion which has the effect of extending the time to answer; or (3) serving a notice of appearance” (id.).

“The answer, of course, is defendant’s pleading in response to a complaint” (id.see CPLR 3011, 3018). “A defendant who has defaulted in answering admits all traversable allegations in the complaint, including the basic allegation of liability” (Glenwood Mason Supply Co., Inc. v Frantellizzi, 138 AD3d 925, 926; see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; Cole-Hatchard v Eggers, 132 AD3d 718, 720).

Service of a notice of motion to dismiss a complaint pursuant to CPLR 3211(a) extends a defendant’s time to answer the complaint (see CPLR 3211[f]). Such a motion must be made “before service of the responsive pleading is required” (CPLR 3211[e]), or it is untimely (see Bennett v Hucke, 64 AD3d 529, 530).

Finally, a notice of appearance is “a simple document that notifies the plaintiff that defendant is appearing in the action” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1). A notice of appearance “is the response generally reserved for the situation in which the plaintiff’s process consisted of a summons with notice as authorized by CPLR 305(b)” (id.). “Service of a notice of appearance will avoid a default, at least temporarily, and put the plaintiff to the task of serving a complaint within 20 days” (id.see CPLR 3012[b]). Under those circumstances, “[a]fter the complaint has been served, the defendant, within 20 days, should either serve an answer or make a motion that extends the time to answer” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1; see CPLR 3012[a]).

A defendant’s failure to respond to a summons and complaint within the required time “amounts to what CPLR 3215 . . . calls a failure to appear” (Siegel & Connors, NY Prac § 293; see U.S. Bank N.A. v Gilchrist, 172 AD3d 1425, 1427). “When a defendant has failed to appear . . . the plaintiff may seek a default judgment against him [or her]” (CPLR 3215[a]).

“On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant’s default” (L & Z Masonry Corp. v Mose, 167 AD3d 728, 729; see CPLR 3215[f]; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785). “To defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that [he or she] had a reasonable excuse for [his or her] delay and a potentially meritorious defense” (Liberty County Mut. v Avenue I Med., P.C., 129 AD3d at 785; see Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1195).

In this case, the plaintiff submitted evidence which showed that Hall had been served with the summons and complaint pursuant to CPLR 308(2), and that he failed to appear or answer within the time allowed. In addition, the plaintiff submitted evidence demonstrating that it was entitled to foreclose the subject mortgage due to Hall’s default in repaying the subject loan.

In opposition to the plaintiff’s prima facie showing, Hall first contends that he did not default in appearing. In this regard, Hall asserts that he made an “informal appearance” during the course of this action and was, therefore, not in default. He contends that “even if [an] informal appearance’ is made after the expiration of the time to answer or move specified in CPLR 320(a) . . . judgment by default is precluded.” Hall’s contention is without merit.

It is true that “[i]n addition to the formal appearances listed in CPLR 320(a), the law [*3]continues to recognize the so-called informal’ appearance” (Siegel & Connors, NY Prac § 112). “It comes about when the defendant, although not having taken any of the steps that would officially constitute an appearance under CPLR 320(a), nevertheless participates in the case in some way relating to the merits” (id.).

Although “an informal appearance can prevent a finding that the defendant is in default, thereby precluding entry of a default judgment” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:4), this is only true when the participation constituting the informal appearance occurred within the time limitations imposed for making a formal appearance (see Taylor v Taylor, 64 AD2d 592, 592; see also Jeffers v Stein, 99 AD3d 970, 971; Stewart v Raymond Corp., 84 AD3d 932, 933; Parrotta v Wolgin, 245 AD2d 872, 873). Indeed, even service of a formal “notice of appearance will not protect the defendant from entry of a default judgment if, after service of the complaint, the defendant does not timely make a CPLR 3211 motion or serve an answer” (Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C320:1). Accordingly, an informal appearance, without more, does not somehow absolve a defendant from complying with the time restrictions imposed by CPLR 320(a) which govern the service of an answer or the making of a motion pursuant to CPLR 3211 (see CPLR 3215[a]; U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1167). Contrary to Hall’s contention, this Court has never held otherwise; to do so would effectively eliminate any need for compliance with the time limitations imposed by CPLR 320(a), and render those statutory provisions meaningless for all practical purposes (see City of Newburgh v 96 Broadway LLC, 72 AD3d 632, 633; Carlin v Carlin, 52 AD3d 559, 560-561; cf. CPLR 3215[a]).

Out of scope – the inquiry tightens July 23, 2020

Roizman v Stromer, 2020 NY Slip Op 04196 (2d Dept. 2020)

” While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'” (Behar v Coren, 21 AD3d 1045, 1046-1047, quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Behar v Coren, 21 AD3d at 1047; see DiLorenzo v Zaso, 148 AD3d 1111, 1113). “Where no such foundation is laid, the expert’s opinion is of no probative value,'” and is therefore insufficient to meet a party’s burden on a summary judgment motion (DiLorenzo v Zaso, 148 AD3d at 1115, quoting Feuer v Ng, 136 AD3d 704, 707).

The hospital defendants’ expert, Vincent M. D’Amico, asserted that he had “overseen the labor and delivery of thousands of newborns,” and that “[b]y virtue of [his] experience and training, [he was] familiar with the accepted standards of practice in the fields of obstetrics and gynecology that were in effect at the time of the events at issue herein, including the management of labor and delivery and postpartum and neonatal care.” We reject the hospital defendants’ contention that D’Amico’s professed familiarity with “postpartum and neonatal care,” through his extensive experience delivering newborns, was sufficient, without more, to establish his qualifications to render reliable opinion testimony on issues including, inter alia: (1) whether De Jesus, an orthopedic intern, acted in an appropriate and timely manner in diagnosing and treating Roizman’s pubic bone diastasis; (2) whether Naves-Ruiz, a pediatrician, properly responded to the infant’s neonatal oxygen desaturation, properly ruled out sepsis and treated the infant with antibiotics for presumed pneumonia and infection, and performed all appropriate tests; (3) whether the staff of the Lenox Hill Hospital Department of Anesthesiology properly performed Roizman’s epidural; and, (4) whether the staff of Lenox Hill Hospital was negligent and in any way contributed to the plaintiffs’ alleged injuries (see Shectman v Wilson, 68 AD3d 848). Because D’Amico did not establish his qualifications to opine on these issues, his affirmation was insufficient to carry the hospital defendants’ burden to establish a prima facie case for summary judgment in their favor (see Feuer v Ng, 136 AD3d at 707; Lavi v NYU Hospitals Center, 133 AD3d 830, 831; Behar v Coren, 21 AD3d at 1046-1047).”

My friend who runs the largest Plaintiff no-fault firm will remind me that the Courts held Country-Wide’s nurse reviewers could render an opinion upon an appropriate foundation. But as I have observed over the last five years, is Gary T’s case from 15 years out of the First Department (563 Grand v. C-Wide) good law anymore? Or, is it good law in the Second Department? Of relevance, how can the recently deceased Tamboro or Dr. Drora Hirsch, both pediatricians, opine about anything in NY PIP? These are really good questions.

A declaration later became an affidavit July 23, 2020

Bacon & Seiler Constructors, Inc. v Solvay Iron Works, Inc., 2020 NY Slip Op 04020 (4th Dept. 2020)

“Contrary to plaintiff’s further contention, the court did not abuse its discretion in allowing defendants to correct an error in Sheila Maestri’s declaration. While the declaration initially submitted by defendants in support of the motion was defective because the declaration was not in affidavit form (see CPLR 3212 [b]), defendants corrected that technical defect by submitting the identical evidence in proper form in their reply papers. Under these circumstances, the [*2]original defect in form does not require denial of defendants’ motion with respect to Sheila Maestri (see CPLR 2001; Qi Sheng Lu v World Wide Travel of Greater N.Y., Ltd., 111 AD3d 690, 690 [2d Dept 2013]; Matos v Schwartz, 104 AD3d 650, 653 [2d Dept 2013]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700, 700 [1st Dept 1983]).”