Be careful what you wish for
ALLIANCE SPINE & JOINT III, LLC a/a/o AUDREY BELMONTE vs GEICO GENERAL INSURANCE COMPANY, No. 4D21-134 (Fla. 4th DCA 2021)
This is an interesting Florida PIP case as it deals with the bane of every PIP Plaintiff/Applicant attorney: filing fees. New York Civil Court, City Court and District Court attorneys fail to realize how lucky they have it with the filing fees in the lower courts in New York. Outside of service fees, a lower court attorney will spend no more than $85 per case in filing fees, from $1 to $15,000-$25,000. Arguably, multi-suits could be per Assignor, allowing the maximum set forth in a complaint to be larger than above.
In Florida, the filing fees are bifurcated. The complaint filing fee is: $55.00 (claim under $100); $80.00 (claims from $101-$500); $175.00 ($501-$2500); $300.00 ($2501 to $30,000). The summons fee is $10.00 and there is usually a $5.00 surcharge added to all transactions.
A volume practitioner will always try to fit within the $55.00 fee level. It is economical. After devoting $70 to aggregate filing fees (there is no NOT or motion fee in Fla), the volume practitioner will also try to move to amend if he believes the claim has merit.
The good people at GEICO caught on, knew they had no defense and filed a confession once the suit was served. Sure, the attorney/filing fee will be $2500, but they blocked out additional exposure. (Florida only allows one lawsuit per Claimant/Assignee).
A motion to amend was made, which the Court saw through:
“On May 16, 2019, approximately five and a half months after Geico confessed judgment and two weeks before the scheduled hearing on Geico’s motion to enforce the confession of judgment Provider moved to amend its complaint. Provider alleged, for the first time, that the “$54.10” in damages sought in the complaint was a “typographical error.” Provider made no mention of the complaint’s allegation that its damages “do not exceed $100.” As evidence that the “$54.10” was a typographical error, Provider attached to its motion a demand letter that it allegedly sent to Geico on October 11, 2016, demanding “$531.16” plus interest. “
“Thus, the controversy between the parties had not been so fully resolved that a judicial determination could have no
actual effect. Accordingly, to the extent the court seemingly denied the motion to amend on the basis that it lacked the authority to rule on the motion, we hold that it was error to do so. However, the court alternatively denied the motion to amend on the basis of prejudice. Because we conclude that the court did not abuse its discretion in denying the amendment on the basis of prejudice, we affirm the final judgment because at that point there was nothing left for the court to do but to enforce the otherwise valid confessed judgment”
The lesson is to know that with every action, there is an opposite yet equal reaction.
CPLR 308(5)
Fontanez v PV Holding Corp., 2020 NY Slip Op 02173 (1st Dept. 2020)
This one is interesting as I encounter these 308(5) cases and I get different results depending on who the the judge is.
“The motion court properly determined that service upon Mr. Yu pursuant to CPLR 308(1), (2), or (4) was impracticable. Plaintiff served the summons and complaint on the Secretary of State of New York and mailed notice of this service with a copy of the pleadings to defendant Yu by registered mail to his last known address. She also hired a process server, who attempted to obtain Mr. Yu’s address through the Department of Motor Vehicles and through people search databases, including “Premium People Search” and “IRB Search.” Further, the motion court properly concluded that plaintiff’s attempts to serve through the Chinese Central Authority in accordance with the Hague convention would have been futile because she did not have defendant’s correct address (see Born To Build, LLC v Saleh, 139 AD3d 654, 656 [2d Dept 2016]). Plaintiff was not required to show due diligence to meet the impracticability threshold under CPLR 308(5) (see Franklin v Winard, 189 AD2d 717 [1st Dept 1993]).”
Laches – remember that word?
Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co., 2020 NY Slip Op 50238(U)(App. Term 2d Dept. 2020)
“[A] court ‘ha[s] no power whatsoever’ to dismiss an action for gross laches or failure to prosecute in the absence of a 90-day demand to serve and file a [notice of trial]” (Arroyo v Board of Educ. of City of NY, 110 AD3d 17, 20 [2013], quoting Hodge v New York City Tr. Auth., 273 AD2d 42, 43 [2000]; see also Chase v Scavuzzo, 87 NY2d 228 [1995]; General Assur. Co. v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and “the doctrine of laches does not provide an alternate basis to dismiss a complaint where there has been no service of a 90-day demand pursuant to CPLR 3216 (b)” (Arroyo, 110 AD3d at 20; see also Montalvo v Mumpus Restorations, Inc., 110 AD3d 1045 [2013]). As defendant does not claim to have served a demand pursuant to CPLR 3216, it was error for the Civil Court to grant the branch of defendant’s motion seeking to dismiss the complaint based on laches.
The motion to dismiss
Hutchins v Palmer, 2019 NY Slip Op 07570 (2d Dept. 2019)
“Furthermore, the defendants’ motion could not be defeated or rendered academic by filing an amended pleading. “[A] motion to dismiss which is addressed to the merits may not be defeated by an amended pleading,” and a motion to dismiss an action as time-barred is clearly addressed to the merits (Livadiotakis v Tzitzikalakis, 302 AD2d 369, 370; see Terrano v Fine, 17 AD3d 449). Thus, the plaintiffs ignored the defendants’ motion at their own peril.”
This is a case that needs to be understood. Most people believe that an amended complaint will end the motion to dismiss. Not necessarily.
Procedural irregularity
Wells Fargo Bank, N.A. v Merino, 2019 NY Slip Op 04655 (1st Dept. 2019)
“While defendant, who was initially pro se, raised the defense of plaintiff’s noncompliance with the strict requirements of RPAPL 1304 90-day pre-foreclosure notices in her answer, she did not raise it in her opposition to plaintiff’s motion for summary judgment, which was subsequently granted. This does not preclude her, however, from raising plaintiff’s noncompliance prior to entry of judgment of foreclosure and sale (Emigrant, 142 AD3d at 755-756).
Plaintiff failed to establish strict compliance with RPAPL 1304, a condition precedent to the commencement of a foreclosure action (see HSBC Bank USA v Rice, 155 AD3d 443 [1st Dept 2017]). The affidavits submitted by plaintiff failed to demonstrate a familiarity with plaintiff’s mailing practices and procedures (HSBC Bank, 155 AD3d at 444), and they did not suffice as affidavits of service.”
This one is interesting. In one instance, Plaintiff received summary judgment. And after obtaining summary judgment, the defendant move to dismiss based upon violation of RPAPL 1304. Head scratching
Watch out for text degradation
Global Liberty Ins. Co. v Tyrell, 2019 NY Slip Op 03691 (1st Dept. 2019)
This case was the result of the system crunching large pdf’s into smaller files to free up more space on my hard drive. I am not even kidding. We were not even aware of the text degradation until it was raised in opposition. The natural reaction is to put in better copies; but apparently, you need an affidavit explaining that the better copies were the ones sent to the Defendant. New rule here and I will remember. Not even sure that specific argument was raised but practice tip out there – if you wish to clarify you submission in Reply, get an affidavit briefly explaining what happened. Perhaps shame on me here.
Supreme Court accepted the clear letters in reply but found a mailing issue. It is a fair guess that the Appellate Division accepted the mailing and non-appearance issue, but relied on a hyper-technical issue to affirm the lower court’s order. I can live with this.
What was really good though (and I am quite thankful) is the Court found the wrong caption/ no caption argument to lack merit. This argument has picked up steam in Civil Kings, and it is nice to see it has finally died. Well it will not die but it has been judicially found to lack merit. Thus, the App Term and Article 75 courts will likely not find merit in this argument.
Subpoenas
Matter of Global Liberty Ins. Co. v Perez, 2019 NY Slip Op 00548 (2d Dept. 2019)
” Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered July 6, 2018, which denied petitioner Global Liberty Insurance Company’s (Global Liberty) motion, pursuant to CPLR 4404(b), to set aside a prior order (same court and Justice), entered on or about July 12, 2017, denying Global Liberty’s motion for a continuance of the framed-issue hearing after the two witnesses subpoenaed by Global Liberty failed to appear, and dismissing the petition on the ground that Global Liberty failed to present any witnesses or other evidence, unanimously reversed, on the law and the facts, without costs, the CPLR 4404(b) motion granted, the July 12, 2017 order vacated, Global Liberty’s continuance granted, and the court is directed to reschedule the framed issue hearing after Global Liberty has an opportunity to seek to enforce the subpoenas. “
(1) “Here, there is no evidence that petitioner Global Liberty was dilatory in issuing subpoenas to the officer who responded to the scene or to respondent Nestor Ruben Perez, neither of whom appeared at the framed issue hearing. Nor is there any evidence that petitioner was in any way responsible for these witnesses’ failure to appear. The issue about which they would testify, i.e., whether the vehicle involved in the accident, which fled the scene, was a 2003 Subaru or a 2005 Chevrolet, is central to the issue of whether that vehicle was stolen or was driven by Flores’s ex-husband who reported it stolen. “
(2) ” Moreover, while Flores and GEICO claim prejudice on the ground that Flores’s ex-husband has left the country, Global Liberty has made it clear that it would consent to having him testify by electronic means (cf. Yu Hui Chen v Chen Li Zhi, 109 AD3d 815 [2d Dept 2013]), a concession not addressed by Flores and GEICO or the court below. “
This case involved a possibly altered police report and a specious claim that the adverse vehicle was stolen. We just wanted a fair hearing, which we were denied. That said, we gave the IAS judge an opportunity under 4404(b) to follow the law. Deaf ears, closed doors and an ensuing trip to the Appellate Division.
Delay?
Sunrise Acupuncture PC v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 51887(U)(App. Term 1st Dept. 2018)
“The trial court properly denied defendant-insurer’s belated attempt to invoke the primary jurisdiction of the Workers’ Compensation Board [WCB] in these consolidated first-party no-fault actions. Other than asserting the workers’ compensation statute as one of eighteen affirmative defenses in its respective May 2011 answers, defendant did not otherwise raise or pursue the workers’ compensation issue during the course of the litigation, and indeed, only raised the issue at trial, nearly seven years later. Under these particular circumstances, defendant “may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation” (Sangare v Edwards, 91 AD3d 513, 515 [2012]; see Ovenseri v St. Barnabas Hosp., 94 AD3d 495 [2012];Bastidas v Epic Realty, LLC, 58 AD3d 776, 777 [2009]).
Defendant voluntarily adjourned this case for seven years? Do you believe that? The”winning” argument was not preserved on the trial record. The Bronx no-fault part is what does this, not any of the defendants. When you have one judge hearing cases for 1.5 hours a day, this is the end result.
I am disappointed.
202.48 – settle an order
Solomon v Burden, 2018 NY Slip Op 07480 (2d Dept. 2018)
I have always been intrigued, interested or mystified by how the Courts have treated the 60-day rule to settle or submit an order. This case from today adds more questions than answers to the overall calculus. I seem to remember the same analysis applied to CPLR 3212(b) pre-Brill.
“Here, under the particular facts of this case, the interests of justice dictate that the court not be burdened with a trial where liability is certain. To hold otherwise would be contrary to the intent of 22 NYCRR 202.48 and would lead to a waste of judicial resources (see Russo v City of New York, 206 AD2d 355, 356). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ motion which was, in effect, to extend their time to submit an order of reference.”
An unsigned OSC on appeal – procedure.
Gluck v Hirsch, 2018 NY Slip Op 05828 (2d Dept. 2018)
“After oral argument, the court declined to sign the proposed order to show cause, with a handwritten notation that the Hirsches failed to demonstrate a meritorious defense to the action and that the Hirsches failed to submit proof of misconduct by the plaintiff’s attorney.
By decision and order on motion dated December 22, 2015, this Court granted the Hirsches leave to appeal from the Supreme Court’s order declining to sign the proposed order to show cause and stayed the foreclosure sale of the subject premises pending the hearing and determination of the appeal (see Gluck v Hirsch, 2015 NY Slip Op 94403[U]).
“The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein” (CPLR 2214[d]). Whether the circumstances constitute a “proper case” for the use of an order to show cause instead of a notice of motion is a matter within the discretion of the court to which the proposed order is presented (see [*2]Siegel, NY Prac § 248 [5th ed, 2011]). Here, under the particular circumstances of this case, this was a proper case for the use of an order to show cause, and the Supreme Court improvidently exercised its discretion in declining to sign the proposed order to show cause (see Matter of Georghakis v Matarazzo, 123 AD3d 711, 711).”
I post this because generally, the remedy for an unsigned OSC is to bring the application to the Appellate Division (CPLR 5704[a]) or Appellate Term (CPLR 5704[b]). Here, because the Court ruled on the merits of the OSC without any responsive papers, the declined OSC became an order on motion not on notice, requiring leave.
Procedure.