Key Takeaway
Court rules on no-fault insurance coverage dispute, addressing procedural issues with raising defenses for first time on appeal and excess coverage eligibility.
This article is part of our ongoing coverage coverage, with 150 published articles analyzing coverage 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.
Carlin v Hereford Ins. Co., 2015 NY Slip Op 01601 (2d Dept. 2015)
(1) The defendant’s contention that, in light of the nature of the underlying accident, the plaintiff was not a covered person under the no-fault provisions of the subject automobile insurance policy is not properly before this Court, since the defendant is raising it for the first time on appeal (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043; KPSD Mineola, Inc. v Jahn, 57 AD3d 853; Triantafillopoulos v Sala Corp., 39 AD3d 740). Moreover, this defense does not raise a pure question of law apparent on the face of the record that could not have been avoided if raised at the proper juncture (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043; KPSD Mineola, Inc. v Jahn, 57 AD3d 853; Triantafillopoulos v Sala Corp., 39 AD3d 740). Accordingly, we do not disturb so much of the judgment as, in effect, awarded the plaintiff $50,000 in unpaid basic no-fault benefits.
(2) The automobile insurance policy issued by the defendant also provided optional additional personal injury protection, with limits of $150,000, for covered persons who sustained extended economic loss as a consequence of an automobile accident. This coverage is commonly known as excess no-fault coverage. The defendant failed to preserve for appellate review its contention that the plaintiff was ineligible for coverage under the additional personal injury protection provisions of the subject policy since, at trial, it made no reference to the governing insurance regulations, nor did it request that the Supreme Court take judicial notice thereof (see CPLR 4511; cf. Matter of Damian M., 41 AD3d 600; Matter of Olympia Victoria R., 261 AD2d 191). The defendant’s contention on appeal that the plaintiff was ineligible for excess no-fault coverage does not raise a pure question of law that could not have been avoided if raised at the proper juncture
(3) Interest is simple, not compounded.
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This case is somewhat of a puzzle to me. I suspect the decedent was a pedestrian and there was an issue as to whether the vehicle made contact with her. Pedestrians are not entitled to APIP, and the argument of lack of coverage leads me to believe there was an issue of lack of contact. Just a guess.
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Legal Context
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
Insurance Coverage Issues in New York
Coverage disputes determine whether an insurance policy provides benefits for a particular claim. In the no-fault context, coverage questions involve policy inception, named insured status, vehicle registration requirements, priority of coverage among multiple insurers, and the applicability of exclusions. These articles examine how New York courts resolve coverage disputes, the burden of proof on coverage defenses, and the interplay between regulatory requirements and policy language.
150 published articles in Coverage
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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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