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Stricken v. dismissed May 29, 2009

V.S. Med. Servs., P.C. v Travelers Ins. Co.
2009 NY Slip Op 29226 (App. Term 2d Dept. 2009)

I am not sure why this case did not receive a (u) or Misc.3d(A) citation, but I take it the Appellate Term is trying to remind people what the difference is between an action that is sticken from the calendar verses an action that is dismissed due to a party’s non-appearance. If a non-superior court case is stricken, you have one year to restore it. Restoration needs to be made by motion (or so-ordered stipulation) and a reasonable excuse needs to be set forth as to why the matter was stricken. Compare, CPLR 3404 (Superior court actions can be revived as a matter of right within one year from the Note of Issue being stricken). After one year, you need to satisfy the four factors that defendant and the Civil Court argued needed to be satisfied. Contrariwise, if a case is dismissed, then the traditional 5015 factors need to be proved in order to revive the case.

Strategically, a no-fault plaintiff many times would prefer to have a case dismissed for non-appearance provided the six year SOL has not expired, than have it marked off the calendar. A dismissed case can be refiled, as long as it is without prejudice which is usually the case in the Civil Courts. A case marked off the calendar is not dismissed. And, in the Second Department, it probably can never be dismissed since 3404 does not apply.

A plain disaster May 29, 2009

A.M. Med. Servs., P.C. v GEICO Ins. Co.
2009 NY Slip Op 51029(U)(App. Term 2d Dept. 2009)

Simply put, you have to read this case. It looks to be a real disaster. Three points of law seem to come from this case.

First, if you have an order that conditionally dismisses or precludes a party should an EBT not be performed on or before a certain date, the party wishing to give effect to that order needs to follow the Appellate Term’s Fogel decision. Yes Fogel.

The Appellate Term has previously applied Fogel, in a 5102(d) action, when it denied an EBT dismissal motion on the basis that the Defendant failed to offer evidence from someone with personal knowledge that EBT was attempted to be scheduled and did not occur. It is the same principle here or even in EUO cases. You need to obtain an affidavit from someone with personal knowledge that the EUO did not occur. This could be from a calendar clerk or attorney, provided the right foundation is laid in the affidavit or affirmation. That was probably missing in this case.

Second, late papers will be accepted provided there is no prejudice. The effect of this is self explanatory.

Third, Golia’s dissent is priceless and explains why we now have a different crop of attorneys (on both sides) fighting the appellate wars. I will leave it at that.

Six year SOL May 29, 2009

Spring World Acupuncture, P.C. v NYC Tr. Auth.
2009 NY Slip Op 29229 (App. Term 2d Dept. 2009)

Finally, someone convinced the Appellate Term that no-fault actions created by statute have a six year SOL. The lead case on this one, Elrac v. Suero, clearly held that a first-party action, created by statute but contractual in nature from the eyes of the injured person should trigger the 6 year SOL that pertains to contractual actions.

Whether or not one agrees with Suero, it is binding precedent. But until the Appellate Division or the Court of Appeals says otherwise, this is the law.

What seemed bizarre in the three years since Suero was that the Appellate Term, in actions against MVAIC, routinely held that the SOL was three years, based upon the portion of the CPLR which states that actions pursuant to a statute have a 3-year SOL. Yet, if a self-insured entity that is forced to provide first-party benefits by statute is bound by the contractual 6-year SOL, why should MVAIC be any different?

Good job to the Plaintiff’s attorneys on this one.

In the Rehab of Interboro May 28, 2009

Matter of Interboro Mut. Indem. Ins. Co.
2009 NY Slip Op 29225 (Sup. Ct. Nasaau Co. 2009)

This case, despite how simple it appears, involved an extremely complicated analysis of Article 73 of the Insurance Law, Article 74 of the Insurance Law (Companies involved in rehabilitation/liquidation), Article 51 of the Insurance Law (No-fault), CPLR Section 2221 (leave to renew), and why established precedent from the 1930s should guide this matter, as opposed to the plethora of modern no-fault law cases.

The case may be best summarized as follows. A company exiting rehabilitation is in a completely different position than a company that never entered rehabilitation. Similar to an entity that succeeds in fulfilling its obligations under a Chapter 11 or Chapter 13 bankruptcy plan, an entity that successfully exits rehabilitation will play by a different set of rules. That is really what this case is about, and within the confines of commercial practice, this makes sense.

Damages. May 27, 2009

While there is a drought in the well of new no-fault cases, here is a case that garnered my attention.

Liberty Mut. Ins. Co. v Perez
2009 NY Slip Op 50993(U) (App. Term 1st Dept. 2009).

The facts are simple. Defendant, who admitted dozing off while driving a vehicle, hit a legally parked vehicle, insured by Liberty, on a street. The Liberty vehicle was totalled. Plaintiff Subrogee insurance carrier (Liberty) paid out $19,000 in property damage benefits to its insured and sued Defendant, presumably under theories of equitable and contractual subrogation.

Procedurally, Plaintiff subrogee moved for summary judgment on both liability and damages. Defendant did not put up a fight as to liability but opined that Plaintiff did not demonstrate its damages as a matter of law. Civil Court granted Plaintiff summary judgment as to liability and damages. Defendant appealed. The Appellate Term modified, and remanded to Civil Court for an assessment of damages.

Plaintiff in its motion apparently did not “conclusively establish the market value of the vehicle prior to the accident.” Furthermore, the court held that on remand, “defendant will have the opportunity to present evidence challenging plaintiff’s decision to declare the vehicle a total loss.”

So, I take it that Plaintiff would have met its burden had it: (a) presented an affidavit that in accordance with the insurance regulations, the vehicle was a total loss because the cost of repairing it would be in excess of the percentage of loss that is required before a vehicle may be deemed a total loss; and (b) offered competent evidence as to the market value of the vehicle prior to the loss.

In all honestly, this is not a difficult burden at all, when you think about it. It probably requires a form affidavit with certain variables that could be adjusted on a case by case basis. What is interesting is that I was always of the belief that “damages” in property damage matters always required an inquest (on default) or a hearing on damages (when the defendant answered the complaint). I guess according to the Appellate Term, damages can even be adjudged as a matter of law on motion papers.

There is a no-fault relationship here, actually. But, it has nothing to do with the usual “medical provider v. carrier” fight that we deal with on a daily basis. Rather, in a rear-end or uncontested liability case, it would appear that within the confines of an APIP subrogation case or Basic PIP subrogation case (in the limited circumstances this type of action is allowed), an insurance carrier’s proof of receipt of the bills and the amount it paid out to its Subrogor or the Subrogor’s assignee, would conclusively establish an insurance carrier’s damages.

Thus, while general practitioners have always grumbled about how no-fault decisions procedurally impact them, we in the world of no-fault, again, can say that a non no-fault case has now impacted some segment of the no-fault bar. No, not the one you drink at.