American Transit Ins. Co. v. Figueroa (Index #: 150603/14)(Sup Ct. NY CO. 2015)
The Supreme Court here appeared to be angered at a declaration judgment action. Part of the motion that Defendant made was to dismiss based upon CPLR 3211(a)(4). As we all know, American Transit v. Solorzano addressed this issue and found this basis of dismissal to be without merit. Well, apparently another judge felt otherwise.
Was Solorzano even argued? You be the judge here.
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3 Responses
I’m newer to no fault, but not new enough to know that billings, who was cited in the transcript, is a tough judge on carriers. maybe solorzano wasn’t argued to the fullest, but you have to wonder if it would have made a difference.
fortunately, the 1st dept app division and term cases still hold water with most other judges. this case should be appealed; however, with any appeal, you run the risk of creating bad law. looks like its just bad luck for the carrier.
The point I was making is that if you are going to appear on these cases, argue the law, tell the judge he is wrong and let him know why. We all lose and that is fine. But this firm has a tendency of doing none of the above, and it is irksome because this behavior affects all practitioners.
The precedential value of that single sentence in Solorzano is questiOnable, at best, especially as applied to defendants that have appeared and answered in the declaratory action. I see no facial error in the Supreme Court decidIng that, “under the circumstances” (to use the Solorzano court’s words) of a given case, dismissal is appropRiate.