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The motion to dismiss October 24, 2019

Hutchins v Palmer, 2019 NY Slip Op 07570 (2d Dept. 2019)

“Furthermore, the defendants’ motion could not be defeated or rendered academic by filing an amended pleading. “[A] motion to dismiss which is addressed to the merits may not be defeated by an amended pleading,” and a motion to dismiss an action as time-barred is clearly addressed to the merits (Livadiotakis v Tzitzikalakis, 302 AD2d 369, 370; see Terrano v Fine, 17 AD3d 449). Thus, the plaintiffs ignored the defendants’ motion at their own peril.”

This is a case that needs to be understood. Most people believe that an amended complaint will end the motion to dismiss. Not necessarily.

PA law – a good read October 24, 2019

Williams v Janvier, 2019 NY Slip Op 07638 (2d Dept. 2019)

One thing that I frequently observe is Pa license plates, Pa policies and the usual EUO showing the EIP did not actually reside in Pa. Here is a great example from the Appellate Division as to the rights, remedies and perils in this choice of law paradigm:

“We disagree with Penn National Insurance’s contention that the Supreme Court, in reaching its determination, misapplied Pennsylvania law. In the seminal case of Erie Ins. Exch. v Lake (543 Pa 363, 671 A2d 681), the Pennsylvania Supreme Court held that while an insurer may rescind an automobile insurance policy retroactively on the basis of fraud or misrepresentation “as to the actual perpetrator of the fraud, where the fraud could not reasonably have been discovered within the 60 day period immediately following issuance of the policy” (543 Pa at 374, 671 A2d at 686; see Parisien v Omni Indem. Co., 63 Misc 3d 1214[A], 2019 NY Slip Op 50523[U], *2 [Civ Ct, Kings County]; Monroe v Omni Indem. Co., 60 Misc 3d 1229[A], 2018 NY Slip Op 51258[U], *2 [Civ Ct, Kings County]; Infinity Select Ins. Co. v Fleming, 159 A3d 45 [Pa Super Ct] [table; text at 2016 WL 6088065, 2016 Pa Super Unpub LEXIS 3755]), it may not deny coverage under the policy with respect to claims made by third parties “who are innocent of trickery, and injured through no fault of their own” (Erie Ins. Exch. v Lake, 543 Pa at 375, 671 A2d at 687; see Island Life Chiropractic, P.C. v Infinity Group, 55 Misc 3d 42, 43 [App Term, 2d Dept, 11th & 13th Jud Dists]; Mutual Benefit Ins. Co. v Druce, 62 Pa D & C 4th 31, 39 [Common Pleas Ct of Dauphin County]). The court reasoned that “[m]otorists carry insurance not only for their own protection, but also, for the benefit of third parties who may suffer through the negligence of the insured motorist” (Erie Ins. Exch. v Lake, 543 Pa at 374, 671 A2d at 686).

Here, Penn National Insurance’s submissions established that it properly rescinded the subject policy under Pennsylvania law with respect to Janvier, based upon the material misrepresentations he made in his application for insurance. However, since there was no evidence that the plaintiffs participated in the fraud, Penn National Insurance failed to demonstrate that the plaintiffs were not innocent third parties who should be precluded from receiving protection under the policy (see Infinity Ins. Co. v Nazaire, 2016 NY Slip Op 31454[U], *5 [Sup Ct, Kings County]; Mutual Benefit Ins. Co. v Druce, 62 Pa D & C 4th at 39; cfOptimal Well-Being Chiropractic, P.C. v Infinity Ins. Co., 46 Misc 3d 27, 29 [App Term, 2d Dept, 11th & 13th Jud Dists]). Accordingly, we agree with the Supreme Court’s determination that Penn National Insurance failed to establish its entitlement to summary judgment on its cross claims against Janvier for a judgment declaring, inter alia, that it was not obligated to “indemnify any judgment obtained against . . . Janvier” arising out of the subject accident. Contrary to Penn National Insurance’s contention, the court’s [*3]determination that the plaintiffs may not maintain a direct action against it until after a judgment is entered in each action against Janvier (see Lang v Hanover Ins. Co., 3 NY3d 350Jimenez v New York Cent. Mut. Fire Ins. Co., 71 AD3d 637, 639), is not at odds with the court’s determination that Penn National Insurance is not entitled to summary judgment on its cross claims.”

When is a notice of trial is filed? October 22, 2019

Metro Psychological Servs., P.C. v American Tr. Ins. Co., 2019 NY Slip Op 51614(U)(App. Term 2d Dept. 2019)

“Contrary to plaintiff’s contention, defendant’s motion for summary judgment dismissing the complaint was not untimely under CPLR 3212 (a). CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc [*2]3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and when a motion is served upon a party’s attorney by mail, service is complete upon mailing”

The 120-day clock runs when the motion served. Correction – I shall correct this: the clock “stops” when the motion is served. But while I am correcting this, I believe we are probably one of the last states that has not moved to e-filing in all courts. It is really embarrassing that Civil Court and some Supreme Courts are still paper courts. Go to Florida, NJ, CA, NV, MA (to name a few) and you will see that paper filing has been abandoned, like leaded gas and the blackberry. Why are we so behind in New York? Hello OCA? Are you reading? It is almost 2020 – how come every court is not an e-file court?

EUO no-show reversed after trial October 22, 2019

Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY, 2019 NY Slip Op 51631(U)(App. Term 2d Dept. 2019)

“At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue was whether the letters scheduling plaintiff’s assignor’s examinations under oath (EUOs) were timely and properly mailed. The only witness at trial was an employee of defendant who testified as to defendant’s policies and procedures regarding mailing EUO scheduling letters.

Contrary to the finding of the Civil Court, defendant established that the initial and follow-up letters scheduling an EUO had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).”

Well, the representative was credible.

EUO no show? October 21, 2019

Ultimate Health Prods., Inc. v Travelers Ins. Co., 2019 NY Slip Op 51620(U)(App. Term 2d Dept. 2019)

EUO no-show case: dismissal affirmed

“In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]). Upon a review of the testimony and evidence which was admitted at trial without objection, we find no basis to disturb the Civil Court’s finding. “

Well this is not surprising.