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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.

A court system not so uniform May 16, 2009

There was an interesting decision that came out from The Long Beach City Court. Judge Smolkin, one of the two City Court Judges out here, wrote a very good opinion as to transferring cases from one lower court to another. I will not attempt to elucidate on the relevancy of this topic. In my mind, it is self evident.

The lesson to be learned from this case, in a nut shell, is that if you wish to consolidate or remove a case from one “court system” to another “court system”, you will need to commence a Supreme Court of County Court action. As to the mechanics of executing this procedure as well as its practicability and viability, I will leave these topics for another day.

People v. Rome, 2009 NY Slip Op 29200 (City Ct. Long Beach 2009)
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29200.htm

Lastly, this is a criminal case so various references are made to the CPL and the Penal Law. But, from a pragmatic standpoint, this case describes how vexatious a journey it is to change the venue of where civil cases are lodged.

Forget the insurance carriers. How about the banks? May 13, 2009

There has been a dearth of no-fault news out in the most recent decision website. This is not to say that more earth shattering or technical challenges to either virgin or somewhat settled points of law are not on the horizon. I have first-hand knowledge in telling you that some interesting decisions will be coming down the pike in the next few months. I just hope they go my way.

With that introduction, there was a case that came from the District Court Nassau County that caught my attention. It makes me think that whatever prejudices or problems any of us might have had with insurance carriers at one point, there is much worse out there

Meet Judith Lawrence.

And lastly, next time you bash an insurance company, remember that trillions of dollars went to support, in part, institutions like the Petitioner below.

Deutsche Bank Natl. Trust Co. v Oliver

2009 NY Slip Op 29197 (Dis. Ct. Nassau Co. 2009)

In an era when tent cities and new Hoovervilles are rising from the ashes of a foreclosure crisis all across America (NY Times, 3/26/09, p.1), the petitioner, Deutsche Bank National Trust Co., asserts a direct legal challenge to the Court’s equitable authority to consider a request for “more time” by a family facing a post-foreclosure eviction. For the reasons stated hereinafter, the Court rejects the challenge, and reiterates that the Court retains the power and equitable discretion to consider claims of genuine hardship in the face of an imminent eviction.”

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“Respondent, Judith Lawrence, made a timely application to this Court for “more time” by filing her request for an Order to Show Cause on March 10, 2009. Her affidavit, on a form provided by the Court, appears to ask for nothing more than “more time.” Although the Court form includes broad, boilerplate language, respecting general requests for relief from a default, it also includes language through which the applicant may seek “such other and further relief as may be just and proper” as well as language providing that, “pending the determination of this motion that the . . .warrant of eviction be stayed.”

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“Judith Lawrence’s moving affidavit presents an extremely compelling equitable case for “more time.” In simple, indeed moving terms, she states: “I need more time as my mom lives with me – she is 92 years. I am getting her in a nursing home and SS documents are delayed as she has dementia. I just need more time. Thank you.”

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“According to petitioner, the “sole equitable relief” permitted on application of a holdover occupant after a judgment of possession “is the statutory authority to grant a stay of issuance or execution of a warrant of eviction for a period not greater than six months from the date of entry of judgment,” further conditioned upon payment “for the occupation of the premises for the period of the stay and such deposit shall also include all rent unpaid by the occupant prior to the period of the stay” (citing RPAPL §753). *3 Based on the provisions cited, petitioner contends that “the relief in the Order was beyond the jurisdiction of this Court to grant except upon condition of payment of $10,000.00 [for five months’ use and occupancy] to the Owner or into the Court.

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The Court must reject the petitioner’s contentions. CPLR 2201 broadly empowers the Court to grant a stay of proceedings “in a proper case, upon such terms as may be just.” The propriety of granting a stay in any given case is limited only by “the Court’s own sense of discretion, prudence and justice”

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Considering Ms. Lawrence’s decades-long occupancy of the subject premises (dating back to 1990), the circumstances under which the premises were lost and then sold to petitioner for $500.00, respondent’s need to care for her 92 year old mother, her *4 mother’s dementia, the practical difficulties she has encountered arranging for nursing home care for her mother, and her apparently good-faith, honest request for “more time”, the Court believes it can properly afford respondent a reasonable amount of additional time to locate suitable accommodations for herself and her mother without violating petitioner’s rights or the Court’s oath of office

The first of hopefully many May 8, 2009

Bongiorno v State Farm Ins. Co.
2009 NY Slip Op 50860(U)(App. Term 2d Dept. 2009)

This case is not remarkable in any way, except according to my calculations, it is the first time a judge in Civil Richmond was overturned on a denied lack of medical necessity summary judgment motion. Actually, I think it is the first time I have seen an appeal from Civil Richmond in a no-fault case in awhile.

Defense attorneys in some courts are told that medical necessity summary judgment motions are not welcome and will be summarily denied.

My hope is that some of the holdout judges in the Second Department, who refuse to grant summary judgment to a carrier’s lack of medical necessity motion-when same is not rebutted with any affirmative medical proof- will now follow suit.

Time will tell, as will more appeals should the rule of law not be followed.

Note – this reference does not apply to the First Department – as of now

A minus v. Mercury May 2, 2009

I can’t comment much on this matter, but if you read the record on appeal in this matter and the record on appeal in the matter of CPT v. NYCM, then you will see that the Appellate Term, First Department, is having trouble figuring out how to resolve an issue that the Appellate Term, Second Department resolved 2 years ago in A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131(A)(App. Term 2d Dept. 2007).

Lastly, this case only gives a Plaintiff more of a reason to file his or her cases in the Bronx.