A tongue twister from the Fourth Department

“It is well established that “ [a] denial of a motion for summary judgment is not necessarily res judicata or the law of the case that there is an issue of fact in the case that will be established at the trial’ ” (Wyoming County Bank v Ackerman, 286 AD2d 884). Nevertheless, “[i]f the facts at [trial] are substantially the same as those presented in the prior appeal, the trial court must adhere to this [C]ourt’s determination of the controverted questions of law” (Bolm v Triumph Corp., 71 AD2d 429, 434, lv dismissed 50 NY2d 801, 928). Because we concluded in the prior appeal that there is a triable issue of fact whether the letter signed by defendant’s [*2]president restarted the statute of limitations (Caleb, 19 AD3d 1090; see General Obligations Law § 17-101), the court was bound by the doctrine of law of the case to submit that issue to the jury.”

If an appellate court makes a finding that a certain fact or issue has been established and not rebutted on appeal, then the Fourth Department is of the view that it is improper for a trial court to a force a trial on that issue.  Six words and an ampersand: (1) prima (2) facie (3) case & (4) timely (5) mailed (6) denial.  I refuse to decipher the Morse code.

Since this is the only Fourth Department from the April series of decisions that I will be posting, I am going to add a thought that is completely unrelated to the post.  Take a look at the cases that the Fourth Department decided on April 30, 2010.  This would be the second section of cases – the first are the appellate motions.  You will see – and I am not kidding you – that about 30% of the cases have dissents.  Of those 30%, at least 40-50% have two Justice dissents, which allows a final judgment to be taken to the Court of Appeals as of right.  This is unprecedented.  I have been opining for months that there are an inordinately large number of dissents up in our Rochester Appellate Court.  But I have never in my life have seen anything from an appellate court in New York, like what I saw in the April 30, 2010 batch of cases.

By the way, the most interesting case that came out on April 30, 2010 was this case entitled Progressive Halcyon Ins. Co. v Giacometti, 2010 NY Slip Op 03544 (4th Dept. 2010).  It involved an issue as to whether the presumption of “permissive use” has been rebutted due to a “backseat driver” sitting in the front passenger seat, who jerks the steering wheel and causes an accident.  Although completely unrelated to no-fault, this is a 4-1 decision you must read.

Proof of actually mailing an item certified mail RRR is sufficient to prima facie demonstrate proper mailing of an item

Dune Deck Owners Corp. v J J & P Assoc. Corp., 2010 NY Slip Op 02739 (2d Dept. 2010)

“Here, the plaintiff established proof of actual mailing through the testimony of its vice-president, who personally addressed and mailed the required notices to the defendants via certified mail, return receipt requested (cf. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d at 547-548; Tracy v William Penn Life Ins. Co. of N.Y., 234 AD2d 745, 748). The defendants failed to rebut this presumption.”

I never saw a case that involved actual mailing of an item via certified mail, RRR, when there was no proof correlating the certified mail card with the certified mail number.

I was employed with [entity] for the duration of the claim

Points of Health Acupuncture, P.C. v GEICO Ins. Co. 2009 NY Slip Op 52445(U) (App. Term 2d Dept. 2009)

“[a]s the affidavit executed by defendant’s claim representative stated that she began working for defendant after the denial of claim forms at issue were allegedly mailed by defendant, and defendant did not otherwise establish…its standard office practice and procedure for the mailing of denial of claim forms during the pertinent time period, defendant failed to establish that its denial of claim forms were timely mailed.”

Affidavits of mailing must state that the affiant was employed with the company for the duration of the claim, or for a defined time period prior to the date of the denial of claim form, verification request or other dated correspondence.  Despite the above, the Appellate Term may have created an exception to the “must be employed for the duration” rule, when it held that the insurance carrier could “otherwise establish…its standard office and practice…during the pertinent time period….”

The first of hopefully many

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