Key Takeaway
First Department appeal challenging rocket docket preclusion in no-fault case, examining law office failure standards and interest of justice review procedures.
Global Liberty v. Coastal Anesthesia
Another attempt is being made to demonstrate that “rocket docket” preclusion is subject to an interest of justice review and that CPLR 2005 applies in the correct situation.
Procedurally, the submissions were 5-days late and a colorable showing of law office failure was presented in the moving papers. In my eyes, if this case does not call for the tempering of a hard-line standard, you might as well throw the baby out with the bath water.
The lower arbitrator – a rocket docket enthusiast – precluded the submissions. I have usually kept my views of the rocket docket club of arbitrators off this blog, and I will continue that policy. Opportunely, the regulation really needs to be amended to incorporate a prejudice or substantial justice standard prior to disallowing a party the opportunity to plead its case. Parenthetically, Countriwide would not get much sympathy under my proposed rule change since mercy is not granted towards the insolent few.
The case is up for submission on 11/25/16. If we win, then some sanity will reign. Should we lose, then we may be looking to DFS to amend the rule, lest DFS looks like they just do not get it.
My prediction. Assuming the Court follows Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Bus. v Professional Health Radiology, 2016 NY Slip Op 06767 (1st Dept. 2016), which held that consideration of evidence was not proper:”based on the multiple errors committed by Unitrin, it failed to establish inadvertent law office error, or that the cases should be remanded, in the interest of justice, for a new arbitration hearing”, the appeal has a good shot at success.
Just note the one mistake that was made on Heatlhmakers, i.e., the failure to include an explanation for the slightly late evidence, was herein not repeated. Fool me once… you know the bit. We cannot say the same about “the partner affirmation”
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