Here is a procedural one for you February 12, 2020
Dookhie v Woo, 2020 NY Slip Op 00975 (1st Dept. 2020)
“A party’s submission of new evidence or argument in reply on the underlying motion constitutes reasonable justification for granting renewal (see Schenectady Steel Co., Inc. v Meyer Contr. Corp., 73 AD3d 1013, 1015-1016 [2d Dept 2010])”
Post Jamaica Wellness Appellate Division victories February 8, 2020
Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 2020 NY Slip Op 00971 (4th Dept. 2020)
I still think that the Fourth Department should have followed the First Department as modified by Longevity. That said, a change or clarification in the law should allow a successive summary judgment motion.
“The Nationwide plaintiffs subsequently filed a second motion for summary judgment on the complaint and submitted, inter alia, a detailed affidavit of the claims specialist, the subject denial of claim forms, and affidavits of the operations manager of their third-party claims processor. Defendant cross-moved pursuant to CPLR 3124 to compel discovery. Supreme Court denied the motion on the ground that it was an improper successive motion for summary judgment and granted in part the cross motion. The Nationwide plaintiffs now appeal.
We agree with the Nationwide plaintiffs that the court erred in refusing to entertain their second summary judgment motion. “Although successive summary judgment motions generally are disfavored absent newly discovered evidence or other sufficient cause . . . , neither Supreme Court nor this Court is precluded from addressing the merits of such a motion” (Giardina v Lippes, 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16 NY3d 702 ; see Putrelo Constr. Co. v Town of Marcy, 137 AD3d 1591, 1593 [4th Dept 2016]). Here, our intervening decision in the prior appeal, which clarified that the defense based on nonappearance at an EUO is subject to the preclusion remedy and that the Nationwide plaintiffs were therefore required to establish that they issued timely denials on that ground, constitutes sufficient cause to entertain the motion (see Pludeman v Northern Leasing Sys., Inc., 106 AD3d 612, 616 [1st Dept 2013]).
We further agree with the Nationwide plaintiffs that they are entitled to summary judgment. Contrary to defendant’s contentions, we conclude upon our review of the record that the Nationwide plaintiffs met their burden as movant and that defendant failed to raise a triable issue of fact (see Nationwide Affinity Ins. Co. of Am. v Beacon Acupuncture, P.C., 175 AD3d 1836, 1837 [4th Dept 2019]). In addition, defendant’s ” mere hope or speculation’ that further discovery will lead to evidence sufficient to defeat [the Nationwide plaintiffs’] motion is insufficient to warrant denial thereof” (Kaufmann’s Carousel, Inc. v Carousel Ctr. Co. LP, 87 AD3d 1343, 1345 [4th Dept 2011], lv dismissed 18 NY3d 975 , rearg denied 19 NY3d 938 ; see Austin v CDGA Natl. Bank Trust & Canandaigua Natl. Corp., 114 AD3d 1298, 1301 [4th Dept 2014]; see generally CPLR 3212 [f]). In light of our determination, defendant’s cross motion to compel discovery is dismissed as moot (see Clark C.B. v Fuller, 59 AD3d 1030, 1031 [4th Dept 2009]). We therefore reverse the order by granting the motion, dismissing the cross motion, and granting judgment in favor of the Nationwide plaintiffs declaring that they are under no obligation to pay or reimburse any of the subject claims.”
Nationwide Affinity Ins. Co. of Am. v PFJ Med. Care, P.C., 2020 NY Slip Op 00972 (4th Dept. 2020)
” Here, to establish their entitlement to summary judgment by making the requisite showing with respect to their defense to payment of the subject claims based upon defendants’ nonappearance at the EUOs, the Nationwide plaintiffs submitted facts that were known to them but not offered on the prior motions for summary judgment (see CPLR 2221 [e] ). The Nationwide plaintiffs also established a reasonable justification for failing to present such facts on the prior motions inasmuch as this Court, in our intervening decision in Jamaica Wellness, held for the first time and in contrast to established precedent in another department that the defense based on nonappearance at an EUO is subject to the preclusion remedy and, therefore, that an insurance carrier seeking a declaration that it is not obligated to pay claims due to such nonappearance must establish, inter alia, that it issued timely and proper denials (167 AD3d at 197-198; see generally Foxworth v Jenkins, 60 AD3d 1306, 1307 [4th Dept 2009]).”
Reasonable excuse relaxed February 6, 2020
P&H Painting, Inc. v Flintlock Constr. Servs., LLC, 2020 NY Slip Op 00603 (2d Dept. 2020)
” Although the general rule is that in order to vacate a default, a party must demonstrate a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a]), the sufficiency of an excuse is not as significant where the default is only a short period (see Vallario v 25 W. 24th St. Flatiron, LLC, 149 AD3d 791, 792-793; Chakmakian v Maroney, 78 AD3d 1103, 1104).”
For every Plaintiff who rejects answers that are less than 2 months late (Arias v First Presbyt. Church in Jamaica, 97 AD3d 712, 712 (2d Dept 2012)(less than two months considered short), be assured the refrain of “failure to establish a reasonable excuse” shall fall on hollow ground, with costs and disbursements.
Defaults February 1, 2020
Market St. Surgical Ctr. v Autoone Ins. Co., 2019 NY Slip Op 52054(U)(App. Term 2d Dept. 2019)
“Pursuant to CPLR 5015 (a) (1), a court may vacate a default in opposing a motion where the moving party demonstrates both a reasonable excuse for the default and the existence of a meritorious defense to the motion” (SS Constantine & Helen’s Romanian Orthodox Church of Am. v Z. Zindel, Inc., 44 AD3d 744, 744-745 ). As plaintiff failed to demonstrate that it possessed a meritorious defense to defendant’s motion, plaintiff’s motion to vacate its default should have been denied.”
I really thought they did not establish a reasonable excuse.
A valid NF-10 February 1, 2020
Aries Chiropractic, P.C. v Ameriprise Ins. Co., 2019 NY Slip Op 52064(U)(App. Term 1st Dept. 2019)
I bolded the Unitrin case. The First Department has been all over the place lately. For anyone to predict how that Court will rule on anything in the no-fault universe would be engaging in an unwise prediction.
“Contrary to plaintiff’s contention, defendant’s denial of claim form did not need to set forth the dates of the EUOs for which plaintiff had failed to appear. “Had it been the intent of the Department of [Financial Services] to require the carrier to set forth [the dates of the scheduled EUOs] in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] ), it would have so provided” (A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 ; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778, 779 ; cf. Unitrin Advantage Ins. Co. v All of NY, Inc., 158 AD3d 449 [1st Dept 2018]). “