Partial summary judgment cannot be granted on non-receipt February 1, 2020

Parisien v Travelers Ins. Co., 2019 NY Slip Op 51895(U)(App. Term 2d Dept. 2019)

One party says it was mailed. Another party says it was not received. Seems rather impossible to obtain a grant of partial summary judgment.

” Moreover, under the circumstances, finding, in essence, that it was “incontrovertible” for “all purposes in the action” (CPLR 3212 [g]) that plaintiff had mailed the claim forms to defendant is inconsistent with also finding that there are issues of fact as to defendant’s defense that it had not received the claims at issue (see Irina Acupuncture, P.C. v Auto One Ins. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50781[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] [“by demonstrating that it had received the claim forms at issue long after plaintiff claims to have mailed them, defendant raised a triable issue of fact as to whether plaintiff’s practices and procedures resulted in the timely mailing of the claim forms to defendant”]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59, 61 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] [“by rebutting the presumption of receipt, plaintiff raised a triable issue of fact as to whether the verification requests had been properly mailed to plaintiff in the first place”]). Indeed, by, in effect, finding a triable issue of fact as to whether defendant received the claims at issue, the court contradicted its own statement that defendant’s “mere denial of receipt of the claims at issue was insufficient to rebut the presumption of receipt established by [plaintiff’s] proof of mailing.”

Rescinding a policy in accordance with Florida law February 1, 2020

NR Acupuncture, P.C. v Ocean Harbor Cas. Ins. Co., 2019 NY Slip Op 51892(U)(App. Term 2d Dept. 2019)

“It is uncontroverted that the vehicle involved in the accident was insured by defendant under a Florida automobile insurance policy. According to the affidavit submitted by an employee of defendant’s managing agent, an investigation conducted after the accident revealed that, at the time the policyholder applied for automobile insurance, she did not reside at the Florida address listed on her application, and that the insured vehicle was not garaged at that Florida address. Thereafter, defendant purportedly rescinded the policy ab initio, pursuant to [*2]Florida Statutes Annotated § 627.409, which permits the retroactive rescission of an insurance policy.

In order to demonstrate that an automobile insurance policy has been properly rescinded ab initio in accordance with Florida law, an insurer must demonstrate that it gave notice of the rescission to the insured and that it returned, or tendered, all paid premiums within a reasonable time after the discovery of the grounds for avoiding the policy (see Fla Stat Ann § 627.728 [5]; Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). Here, defendant’s motion papers failed to demonstrate that it had provided the insured with notice of the rescission, and defendant admitted that it had not returned all of the paid premiums to the insured. “

Settlement of a default judgment February 1, 2020

Diagnostic Medicine, P.C. v Auto One Ins. Co., 2019 NY Slip Op 51891(U)

Five says notice to settle a judgment is necessary on default when the party previously appeared.

“A defendant which appears in an action, but subsequently defaults “is entitled to at least five days’ notice of the time and place” of an application to the court or the clerk for leave to enter a default judgment (CPLR 3215 [g] [1]; see Paulus v Christopher Vacirca, Inc., 128 AD3d 116 [2015]). In the case at bar, plaintiff’s application for the entry of the judgment was dated March 23, 2016 and apparently served on defendant on March 23, 2016. The judgment was entered the following day. While a court may, upon such a default, dispense with the notice requirement (see CPLR 3215 [g] [1]), there is no indication in the record before us that the Civil Court had exercised such discretion. Plaintiff’s failure to give defendant notice as required by CPLR 3215 (g) (1) deprived the court of jurisdiction to entertain plaintiff’s application to enter the judgment”

” However, where a judgment is vacated due to a jurisdictional defect of improper notice, such a defect “does not, standing alone, entitle [defendant] to be relieved of the underlying default upon which judgment is sought, and to defend the action on the merits” 

Prior Arb? February 1, 2020

Ultimate Health Prods., Inc. v Ameriprise Auto & Home, 2019 NY Slip Op 51890(U)(App. Term 2d Dept. 2019)

My only thought would be by actively litigating the matter in the Civil Courts, doesn’t the insurance carrier waive its right to demand arbitration? While arbitration in NY rests solely upon the provider, a carrier when given the right to request it can waive it under certain conditions.

“By decision and order dated July 14, 2017 (57 Misc 3d 9 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), this court reversed the June 9, 2014 order, insofar as appealed from, and denied the branches of defendant’s cross motion seeking leave to amend defendant’s answer to assert that the action is barred by the doctrine of res judicata and, upon such amendment, to award defendant summary judgment on that ground. The matter was remitted to the Civil Court for a new determination of plaintiff’s motion for summary judgment and for a determination of the remaining branches of defendant’s cross motion ”

“With respect to the branch of defendant’s cross motion seeking summary judgment based on plaintiff’s previous election to arbitrate the claims, it is undisputed that after plaintiff had commenced an arbitration, it had been withdrawn with prejudice. However, “[p]laintiff, by electing to arbitrate, waived its right to commence an action to litigate its claims arising out of the same motor vehicle accident” (563 Grand Med., P.C. v Country-Wide Ins. Co., 61 Misc 3d 136[A], 2018 NY Slip Op 51556[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260 [1985]; Cortez v Countrywide Ins. Co., 17 AD3d 508, 509 [2005]; Rockaway Blvd. Med. P.C. v Progressive Ins., 2003 NY Slip Op 50938[U], *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2003] [where arbitration was commenced and the arbitrator dismissed the claim without prejudice to renewal, the court stated, “[i]t is well settled that once a claimant chooses arbitration, it cannot resort to the courts”]).”

The quaint Notice of Trial February 1, 2020

BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51887(U)

I never fully agreed with the assertion that CPLR 3212(a) applies to a “Notice of Trial”. The Note of Issue is a mandatory document in Civil Supreme Court and County Court practice, regardless of party status. In the lower courts, a Notice of Trial only kicks in if both sides are attorney represented. To me, that is significant enough to cast doubt on this line of reasoning. But would anyone besides me attempt to have the Appellate Division analyze this discreet issue?

The other issue is sad. I say “sad” because a Notice of motion is made when served. The lower courts are no e-filing courts and service requires mailing. As any practitioner knows, Civil Court Kings County is known for losing, misplacing or conveniently failing to calendar documents. The inefficiency of a uniform statewide lack of e-filing creates these types of cases. So now we are in 2020 and the lower courts STILL do not have mandatory e-filing? Maybe 2021

“It is uncontroverted that plaintiffs filed their notice of trial on July 14, 2016. Unless a court sets another date, a motion for summary judgment must be made no later than 120 days after the filing of the notice of trial, which is the Civil Court equivalent of a note of issue, except with leave of court on good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 651 [2004]; Boereau v Scott, 140 AD3d 687 [2016]; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). “A [*2]motion on notice is made when a notice of the motion . . . is served” (CPLR 2211). Defendant’s affidavit of service states that its summary judgment motion was served on November 23, 2016, which is over 120 days after plaintiffs had filed their notice of trial. Thus, defendant’s summary judgment motion was untimely