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Pa notice rule February 18, 2022

Castro v Omni Ins. Co., 2022 NY Slip Op 50057(U)(App. Term 2d Dept. 2022)

“Pennsylvania insurance policies, such as the one at issue in this matter, pursuant to which an insured is required to provide the insurer with notice “as soon as practicable,” are governed by a “notice-prejudice” rule (see Lozado v Workers’ Compensation Appeal Board [Dependable Concrete Work and Uninsured Employers Guaranty Fund], 123 A3d 365, 378 [Pa Commw 2015]). Under the notice-prejudice rule, “unless the insurer establishes prejudice resulting from the insured’s failure to give notice as required under the policy, the insurer cannot avoid its contractual obligation” (Ario v Underwriting Members of Lloyd’s of London Syndicates, 996 A2d 588, 598 [Pa Commw 2010]; see Brakeman v Potomac Ins. Co., 472 Pa 66, 76-77, 371 A2d 193, 198 [1977]). The Civil Court correctly concluded that there was an unresolved issue of fact as to whether defendant had been given notice of the accident or loss as soon as practicable. In any event, as defendant’s motion papers failed to establish that it had been prejudiced by reason of the lateness of the notice it received, the Civil Court properly denied defendant’s motion.”

Glad to see Gary T win. But what I am at a loss for is that first-party coverage is granted through the deemer statute and possibly through contractual deemer. Wouldn’t it make sense to apply New York’s claims and policy rules when the coverage is created through NY law? I just never agreed with “choice of law” when am EIP gets to enjoy the fruits of the NY law, yet is either hindered or (in this case) helped by an out of state claims rule. The Courts have not properly analyzed this issue.

CPLR 3215(c) and 5015(a) February 18, 2022

The default should have never been entered as the purported application for leave to enter a default was submitted more than one year after the time to answer, move or otherwise appear expired. Having entered an improper default, the carrier now has to prove lack of service otherwise the improper default must remain. This is wrong and dissent is correct.

There was a recent case where the Plaintiff failed to abide by CPLR 3215(g)(4) and the court, without resort to the 5015 factors, reversed the motion denying the application without resort to the 5015(a) factors. The only basis I can imagine for allowing this to stand is the Court of Appeals holding that 3215(f) is not jurisdictional, therefore, a default that was technically improperly entered could only be vacated through showing 5015(a) applies.

3215(c) is mandatory and appears to be jurisdcitional.

The other observation is that since defendant did not raise it below, the issue was not before the Court. But wouldn’t CPLR 3215(c) be an issue, due to its mandatory sua sponte effect, that a court could not avoid on appeal, which is a known exception to the civil preservation requirement?

The reasonably convenient EUO February 18, 2022

Arcadia Acupuncture, P.C. v Nationwide Ins. Co., 2021 NY Slip Op 51258(U)(App. Term 2d Dept. 2021)

“With respect to the claims received by defendant between May 11, 2018 through June 22, 2018, the record demonstrates, prima facie, that the EUO scheduling letters were timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff, that plaintiff failed to appear for those EUOs, and that defendant timely denied those claims on the ground that plaintiff had failed to appear. However, as we find that a triable issue of fact exists as to whether those EUOs were scheduled to be held at a place that was “reasonably convenient” to plaintiff (see 11 NYCRR 65-3.5 [e]; Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), defendant failed to establish that it is entitled to summary judgment dismissing so much the complaint as sought to recover upon the claims received between May 11, 2018 through June 22, 2018. Consequently, neither party is entitled to summary judgment upon those claims.”

I have to wonder what proof is necessary for a defendant to prove that the EUO or IME is reasonably convenient? As to EUOS – in this virtual world – that should not be an issue. As to IMEs, is this based on a county by county approach?

The (un)timely motion for summary judgment February 18, 2022

BSS Med., P.C. v Metropolitan Prop. & Cas. Ins., 73 Misc 3d 146(A)(App. Term 2d Dept. 2021)

“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 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 (see CPLR 2103 [b] [2]; Pietrafesa v Canestro, 130 AD3d 602 [2015]). Here, it is uncontroverted that the notice of trial, the Civil Court equivalent of a note of issue, was filed on June 14, 2018 [*2]and, thus, contrary to the Civil Court’s determination, defendant’s motion was timely when it was served on October 12, 2018.”

This is a relic of a bygone era, well should be. Yet, we still in 2022 have courts that do not engage in e-filing, and placement of the motion in the mail is still dispositive of when the 120-day or 60-day clock begins to run. I also believe Straniere was correct in finding that 3212(a) should not apply to lower courts. If pro-se, an NOT is unnecessary. Same is not true when two parties are attorney represented. NY would best be served by case management orders with cut-off dates.

When is the location of the EUO reasonable? December 18, 2021

RX for You v Nationwide Ins. Co. of Am., 2021 NY Slip Op 51171(U)(App. Term 2d Dept. 2021)

“Upon a review of the record, we find that a triable issue of fact exists as to whether the EUOs were scheduled to be held at a place which was “reasonably convenient” to plaintiff (see 11 NYCRR 65-3.5 [e]; Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In addition, there is also an issue of fact as to whether, prior to the EUO scheduled for October 14, 2016, the parties mutually agreed to reschedule the EUO (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).”

This has made me thing, when is an EUO reasonable convenient? I ask this because if the EIP lives in NJ and the EUO is scheduled in Long Island, does that automatically make the EUO unreasonable? Or, does this follow the paradigm that if the Assignor asks for an accommodation and one is not given, the EUO attempt violated 3.5(e)? Since there was back and forth, I am thinking this is a situation where law firm said they want the EUO at a certain place and too bad, this is where it is happening,

Lastly, in the world of Zoom depos, is this problem alleviated by getting a zoom link and/or meeting info and putting it in the letter with instructions to contact the law firm if they are not technically savvy and want to appear at a depo center where the virtual depo can take place?