IME no-show and EUO no-show cases. A Civil court sitting in the Second Department followed Unitirn v. Bayshore, and justified its application better than the First Department did.
Neomy Med., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50536(U)(Civ. Ct. Kigs Co. 2011)
1) “Although there are legions of cases discussing the preclusion rule, “drawing the line” between a lack of coverage in the first instance ( requiring no disclaimer) and a lack of coverage based on a policy exclusion (requiring a timely denial) has proven to be “problematic”. Mtr. Of Worcester, supra , 95 NY2d at 189.”
2) “In Travelers indemnity Co. v. Milan Medical, 2009 NY Slip Op. 31604U, 2009 NY Misc LEXIS 3867 (Sup. Ct. NY Co. 2009), the court found that the Mallela defense was a “coverage defense: and as such was not subject to the preclusion rule. Id at 5. See Multiquest PLLC v. Allstate Ins. Co., 17 Misc 3d 37 (App. Term, 2d Dept. 2007); Crossbay Acupuncture v. State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 (App. Term, 2d dept. 2007); Eastern Medical P.C. v. Allstate Ins. Co., 19 Misc 3d 775, 790 ( the challenged regulation in Mallela did not create a new category of exclusion but rather was “a condition precedent with which all claimants must comply in order to receive benefits.” ). The court rejected the defendant’s contention that the [*5]defense of fraudulent incorporation did not fit within the “tight restrictions of the exception to preclusion outlined in General Hospital v. Chubb, 90 NY2d 199. Chubb, like Mallela, “spoke to a threshold coverage matter” Id.
3) “The First Department justified its finding that an IME no show was a non -precludable defense on the ground that a “breach of a condition precedent to coverage voids the policy ab initio.” Thus, the failure to appear for an IME cancels the contract as if there was no coverage in the first instance and the insurer has the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely. Id.”
2 Responses
The Second Department is soon visiting the issue of fraud in the incorporation as the not subject to the rule in Presb. We need to get these IME and EUO cases up there ASAP.
What the Judge tell in Suffolk — “The Court of Appeals is the Court of last guess.”
I guess he’s right because no one follows their precedent and the Ct. of Appeals doesn’t follow the legislature’s enactment of laws.
Why should I follow the law? Because I am not super wealthy. This nonsense is all going to end when there are so many jobless people they have nothing to do but hang around the square outside the state capital.
My two prior comments demonstrate that I have completely lost my ability to write coherently. Or think coherently. I apologize J.T. for the way I have placed garbage on the Defender. I have no credibility. God is calling Zuppa home. I will give my practice to Rogak.
Since I failed to pull of my insult I withdraw it.