Key Takeaway
Fourth Department appellate court ruling on res judicata, law of the case doctrine, and prima facie requirements in no-fault insurance mailing disputes.
This article is part of our ongoing mailing coverage, with 306 published articles analyzing mailing issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
“It is well established that “ 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, “f the facts at are substantially the same as those presented in the prior appeal, the trial court must adhere to this 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 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.
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Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Proof of Mailing in New York No-Fault Practice
Proof of mailing is a foundational issue in no-fault litigation. Insurers must prove timely mailing of denial forms, verification requests, and EUO scheduling letters, while providers and claimants must prove timely submission of claim forms and bills. Establishing a standard office mailing procedure through business records — and the presumption of receipt that follows — is heavily litigated. These articles examine the evidentiary standards for proving and challenging mailing in New York no-fault cases.
306 published articles in Mailing
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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