Eagle Surgical Supply, Inc. v QBE Ins. Co., 2011 NY Slip Op 51455(U)(App. Term 2d Dept., 2011)
“In support of its motion, plaintiff proffered neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted an unverified complaint and an affidavit from an individual who did not establish that he was an employee of plaintiff, did not demonstrate personal knowledge of the facts, and did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Andrew Carothers, M.D., P.C. v Geico Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. [*2]Co., 55 AD3d 644 [2008]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).”
What I find interesting is that the court did not deny leave to enter a default outright.
2 Responses
What a crock of you know what. That bastion of the law the Appellate Term demonstrating that it slavishly follows the exact letter of the law … when it benefits the insurance industry.
What a bunch of blatant hypocrites. In my last go round with them they did not discuss the issue that was the subject of the appeal. It also happened to be the sole issue decided by the lower court. The only issue preserved for appeal because it was the only issue before the lower court. They Totally ignored it. They hijacked the appeal. Invented new law of what constituted a prima facie case — a late denial or a denial in Swahili — and went its merry way.
If God came down to earth and saw what they did he would never stop throwing up. He would throw up oceans.
Who makes these motions?
They are for sum certain so you can just enter a judgment with the clerk.