Summary judgment denied based upon the failure to plead the "emergency doctrine" as an affirmative defense April 3, 2010
Franco v G. Michael Cab Corp., 2010 NY Slip Op 02744 (2d Dept. 2010)
“The defendant could not properly rely on the emergency doctrine in support of its motion. Since the defendant failed to plead the emergency doctrine as an affirmative defense in its answer, and the facts relating to the emergency were known only to the defendant and Badrane, the motion raised new issues of fact not appearing on the face of the pleadings, which resulted in unfair surprise to the plaintiff.”
This is interesting because the trend in the case law has been to either excuse unpleaded affirmative defenses or to almost always grant a motion to amend the complaint to plead the affirmative defense, provided the proposed affirmative defense has merit. There was a no-fault case a year ago – its name escapes me now – where the Appellate Term, Second Department held, point blank, that the failure to plead an affirmative defense or move to amend the complaint to include the proposed affirmative defense was of no moment.
Proof of actually mailing an item certified mail RRR is sufficient to prima facie demonstrate proper mailing of an item April 3, 2010
Dune Deck Owners Corp. v J J & P Assoc. Corp., 2010 NY Slip Op 02739 (2d Dept. 2010)
“Here, the plaintiff established proof of actual mailing through the testimony of its vice-president, who personally addressed and mailed the required notices to the defendants via certified mail, return receipt requested (cf. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 547-548; Tracy v William Penn Life Ins. Co. of N.Y., 234 AD2d 745, 748). The defendants failed to rebut this presumption.”
I never saw a case that involved actual mailing of an item via certified mail, RRR, when there was no proof correlating the certified mail card with the certified mail number.
Dave Gottlieb has posted extensively on this case, and has some good insights on it. This case represents a course in Civil Procedure and its effects on no-fault are minimal. But I will sort this out for the non attorneys who read this, or the attorneys that forgot first year Civil Procedure in law school.
Shady Grove apparently filed a class action lawsuit in Federal court, arguing that Allsate failed to pay interest on numerous cases. The action was based solely upon New York no-fault law. Therefore, the federal court would only have jurisdiction to entertain this matter if there was diversity between any of the parties and $5 million in dispute. According to New York State law and, as is relevant to this case, a class action may not be brought when the damages solely consist of a penalty. Statutory interest and the resulting attorney fees are clearly penalties. Under the Federal Rules of Civil Procedure, a class action can be brought irrespective of whether the object of the action is to collect a penalty. So, you would think that since this case was brought in Federal court, the Federal Rules ipso facto would apply. This is not necessarily true.
In the last century, the Supreme Court held in the Erie and Hannah line of cases that where State substantive law applies, a Federal Court in a diversity matter must apply the state substantive law. The Court, however, held that where the difference between state law and federal law only applies procedural rules, the Federal procedural rules would apply.
The question then is whether the New York class action statute is procedural or substantive. The Second Circuit observed that it is, for the most part, hybrid and held that it is substantive to the extent that Shady Grove could not bring this action in Federal Court since it could not be brought in State Court.
The Supreme Court in a very divided opinion reversed the Second Circuit and held, as far as I am concerned, that the dispute is procedural. Therefore, since the action may be brought in Federal Court in accordance with the Federal Rules of Civil Procedure, the Second Circuit was incorrect in allowing for this lawsuit’s dismissal.
This case now allows for massive forum shopping, for the minimal amount of class action litigation that no-fault has spawned. However, it opens up the door to perhaps more class action lawsuits and the massive discovery, which is always advantageous to the plaintiff class members in this type of litigation. Perhaps, we have entered a new era in no-fault litigation? I do not think so, but as to issues involving interest and attorney fee disputes on a more global level, it is definitely possible.
Westchester Med. Ctr. v Liberty Mut. Ins. Co. 2010 NY Slip Op 30649(u)(Sup. Ct. Nassau Co.)
This case involved a non-coverage defense – actually, two of them. Both of these defenses were quite viable, I tend to believe. The first defense asserted was that Liberty was a TPA for a bus company. The second defense was that the policy was exhausted. The problem with this case is that the defendants did not do their homework. Liberty failed to plead the appropriate affirmative defenses, failed to include a copy of the insurance policy, including the declarations page, when the defense involved the exhaustion of an insurance policy and the defendant could not marshal evidence from someone at the bus company explaining their status as a self insured entity. In a court that reads the parties’ papers, you need to be a little more discerning with what you submit, lest you find yourself on the receiving end of this type of a decision.
Those promised framed issue hearings on “stamped signature” cases were quite short lived March 26, 2010
PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2008-2041 Q C.
Opinion withdrawn from publication in the Miscellaneous Reports at the direction of the court.
I think Gottlieb at NFP captured this case before it was assassinated.
In short, the Appellate Term proposed framed issue hearings on whether a signature was stamped, faxed or affixed in a non-holographic manner, in order to resolve this issue when raised in a summary judgment motion. I suspect someone at OCA or some of the administrative judges placed a few phone calls to the panel of Justices on this case, and now this proposed remedy is void ab initio. In my opinion, the holding of a framed issue hearing is not the worst the idea in the world. Why don’t they have a designated JHO part, like they have in Supreme Kings for these types of hearings?
As the law stands, based upon the last published pronouncement of the Appellate Term, the objector must present some evidence to show that the affixed signature is stamped in order to defeat a motion on this ground.
FURTHER RESEARCH REVEALS THAT THIS CASE HAS NOT BEEN REMOVED FROM WESTLAW (YET). Here it is:
Amercure Acupuncture, P.C. v. Geico Ins. Co., 2010 N.Y. Slip Op. 20098 March 16, 2010 (Approx. 1 page)
GEICO Ins. Co., Appellant.
PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 3, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 3, 2008 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $475.20.
OPINION OF THE COURT