Blog

An angry Appellate Division strikes a complaint based upon discovery violations June 14, 2009

Northfield Ins. Co. v Model Towing & Recovery
2009 NY Slip Op 04878 (2d Dept 2009).

While this case represents nothing unique, the path the Appellate Division took was. The facts, as relayed to the reader, are that the following discovery orders were in place and in some way were violated:

1. Preliminary conference (7/28/05)- discovery was ordered to be completed prior to the Compliance Conference (12/19/06) .

2. Compliance conference (12/19/06) – discovery was ordered to be completed by 2/14/07.

3. There were various status conferences in between the dates of 2/14/07 and 12/12/07.

4. At the 12/12/07 status conference, discovery was ordered to be completed on or before 1/16/08.

5. Discovery was not completed on 1/16/08 .

6. A motion was interposed based upon the failure to comply with the 1/16/08 order. The Court in this order set forth a discovery schedule, and stated that it was to be obeyed under penalty of a 3126 remedy, upon a subsequent motion. In English, it looked as if the violation of this order would result in a conditional order of preclusion or a conditional order of dismissal.

Excluding status conferences and the P.C. order, there were 2 orders. Moreover, only one resulting order was the result of a motion made on notice.

The Defendant appealed the 1/16/08 order on the basis that the Court should have stricken the complaint. What happened next is something that is very rarely seen in downstate New York practice: The Appellate Division reversed the order of Supreme Court and struck the complaint.

Now for those of us who have practiced in Supreme Kings (my favorite example) as defendants and have had the opportunity to make discovery based motions in CCP, you will observe that it is almost impossible to obtain an order containing conditional preclusion or dismissal language, let alone an order that will unconditionally strike the complaint. Almost 10 discovery orders can be violated and a conditional order of dismissal, conditional order of preclusion or an absolute order of preclusion or dismissal will never occur. That is life, and we accept it because when these orders get appealed, the Appellate Division will usually not find an abuse of discretion and affirm the order of the Supreme Court, with the Defendant paying one bill of costs and disbursements to the recalcitrant Plaintiff.

Here, there were 3 disobeyed orders (including the P.C. order) and some status conferences that appeared to be disregarded. The Appellate Division, on appeal, reversed Supreme Court and struck the complaint. Since the SOL probably expired, the dismissal order was with prejudice. My question is as follows: are we going to see this type of vigilance in other cases, or is this case just an anomaly?

A no fault claim representative’s affidavit may cure inaccuracies in the NF-10 form June 11, 2009

We kind of saw it in a previous post involving a Mercury case where a claim representative’s sworn affidavit could explain typographical errors in a resulting NF-10. Some wondered why the Appellate Term never expounded on this point. Now, they have.

Bath Med. Supply, Inc. v Country Wide Ins. Co.
2009 NY Slip Op 51145(U)(App. Term 2 Dept. 2009)

The highlights are as follows:

“Plaintiff contends that defendant’s opposing papers did not establish that the claim determination period was tolled because, while the affidavit of defendant’s no-fault litigation supervisor sets forth the dates on which the verification requests were mailed, the denial of claim forms set forth incorrect dates as to when final verification was requested. However, the unsworn denial of claim forms do not purport to state the dates on which defendant first requested verification, whereas, in the sworn affidavit, defendant’s no-fault litigation supervisor states the dates on which verification was first requested, the dates on which the verification was received and the dates on which the denial of claim forms were mailed. To the extent the unsworn denial of claim forms suggest that defendant may have sent a further request for verification after receiving the verification it initially sought, they do not contradict the sworn statement by defendant’s no-fault litigation supervisor or otherwise nullify defendant’s position that the claim determination period was tolled.”

My observation is that the days of challenging denials for typographical errors have ended. We saw this starting with AB v. Liberty and extending through Al Correa v. State Farm, as well as other cases decided subsequent to Al Correa.

I suppose the best questions to ask are as follows. First, how much of an NF-10 needs to be filled out in order to preserve the defense(s) on it? Second, how many mistakes are allowed to be present on the NF-10, so as to preserve the defenses on the denial? We shall await the answer to these questions.

A no fault claim representative's affidavit may cure inaccuracies in the NF-10 form June 11, 2009

We kind of saw it in a previous post involving a Mercury case where a claim representative’s sworn affidavit could explain typographical errors in a resulting NF-10. Some wondered why the Appellate Term never expounded on this point. Now, they have.

Bath Med. Supply, Inc. v Country Wide Ins. Co.
2009 NY Slip Op 51145(U)(App. Term 2 Dept. 2009)

The highlights are as follows:

“Plaintiff contends that defendant’s opposing papers did not establish that the claim determination period was tolled because, while the affidavit of defendant’s no-fault litigation supervisor sets forth the dates on which the verification requests were mailed, the denial of claim forms set forth incorrect dates as to when final verification was requested. However, the unsworn denial of claim forms do not purport to state the dates on which defendant first requested verification, whereas, in the sworn affidavit, defendant’s no-fault litigation supervisor states the dates on which verification was first requested, the dates on which the verification was received and the dates on which the denial of claim forms were mailed. To the extent the unsworn denial of claim forms suggest that defendant may have sent a further request for verification after receiving the verification it initially sought, they do not contradict the sworn statement by defendant’s no-fault litigation supervisor or otherwise nullify defendant’s position that the claim determination period was tolled.”

My observation is that the days of challenging denials for typographical errors have ended. We saw this starting with AB v. Liberty and extending through Al Correa v. State Farm, as well as other cases decided subsequent to Al Correa.

I suppose the best questions to ask are as follows. First, how much of an NF-10 needs to be filled out in order to preserve the defense(s) on it? Second, how many mistakes are allowed to be present on the NF-10, so as to preserve the defenses on the denial? We shall await the answer to these questions.

It is prima facie day June 11, 2009

I suppose to the extent the Appellate Term, Second Department has been on the 4518 band wagon, it is nice to see the rule that certain evidentiary objections need to preserved in order to raise them on appeal. According to my count, there were 11 prima facie challenges in the June 10, 2009, posted cases. The preserved challenges were successful in all but one case. I suppose the question is: what must an affidavit contain to satisfy a medical provider’s prima facie case, and does it matter which branch of the Appellate Term, Second Department is adjudicating the issue?

Motion to Reargue – the 30 day period is not absolute June 7, 2009

From a procedural standpoint, a question that has arisen is whether a motion seeking leave to reargue or, in certain cases, leave to renew is timely made. Following the 1999 amendment to the statute, there has been debate as to whether the 30-day period to make the motion will be tolled when a timely notice of appeal is filed. This was answered in the negative a few times, but the recent trend has been to answer this inquiry in the affirmative. A recent case highlights this point.

Terio v. Spodek, 2009 N.Y. Slip Op. 04412 (2d Dept. 2009)

“Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in granting that branch of the motion…which was for leave to reargue. Reich’s appeal from the Supreme Court’s order dated December 17, 2007, was pending and unperfected as of the time that the motion for reargument was made. Under these circumstances, the Supreme Court providently entertained that branch of Reich’s motion which was for leave to reargue notwithstanding that it was made beyond the 30-day limit set forth in CPLR 2221(d)(3)”

It follows that as long as a Notice of Appeal has been filed and the appellate brief is unperfected, the 30-day time period to move to reargue or to take advantage of the “change in law” provision in the leave to renew statute remains tolled.