It was not the partner affirmation this time
NY court rules on policy exhaustion defense failure when insurer cited 11 NYCRR 65-3.15 for out-of-state policy, creating priority payment issues in no-fault case.
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June 2017 Articles
20 articles published in June 2017
The poor man’s DJ is no more
Court decision eliminates "poor man's DJ" option for no-fault insurance disputes under $25k, reversing Five Boro case that allowed Civil Court jurisdiction
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Interesting trial preparation rules
New York trial preparation rules on witness subpoenas, photograph authentication, and evidence exclusion from Gonzalez v City of New York court decision.
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Mild, minor, slight
New York Court of Appeals case analysis on serious injury threshold: when mild deficits and full range of motion doom personal injury claims under Insurance Law 5102(d).
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Pleadings not required on a motion for summary judgment
New York courts may excuse missing pleadings in summary judgment motions under CPLR 2001 when no substantial rights are prejudiced, as demonstrated in Wade v Knight Transport.
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Pre-answer motion does not circumvent right to effectuate a 3217 discontinuance
Court rules pre-answer CPLR 3211 motion to dismiss is not a responsive pleading, allowing plaintiff to discontinue action under CPLR 3217(a)(1) even after motion filed.
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Minor impact and expert report sufficient to prove lack of causation
NY court rules minor impact and expert testimony can prove lack of causation in personal injury cases. Key case analysis for attorneys handling accident claims.
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Special Referee cannot determine BP issues
Court rules special referees lack authority to determine bill of particulars disputes, clarifying the distinction between disclosure procedures and pleading amplification.
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Failure to file the affidavit of service not jurisdictional
Court rules failure to file affidavit of service is procedural irregularity, not jurisdictional defect, and can be cured by motion in no-fault insurance cases.
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The plight of Chimps
A New York appellate court ruled that chimpanzees cannot be considered "persons" under habeas corpus law, despite their human-like characteristics and cognitive abilities.
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IME no show trial defense – reversed
Appellate Term reverses trial court ruling that prevented insurance company from defending IME no-show case, clarifying that denied summary judgment motions don't preclude trial defenses.
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Policy Exhaustion (again) must comport with the priority of payment regimen
New York Court rules on policy exhaustion timing requirements in no-fault insurance cases, emphasizing proper demonstration of coverage limits at claim completion.
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Wrong subdivision in traffic ticket still actionable
Traffic ticket errors don't automatically lead to dismissal. Courts can overlook wrong statute citations if the violation is clearly described and defendant understands the charges.
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Party does not have a basis to use CPLR 321(c) as a sword against now unrepresented party
Court rules CPLR 321(c) cannot be used as sword against unrepresented party after stipulation settlement - protection for deprived counsel only.
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Substantive fee schedule discussion/Procedural analysis
Analysis of Gentle Acupuncture v Tri-State Consumer Insurance case examining fee schedule defenses and affidavit requirements in New York no-fault claims.
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2 consecutive error disallow default vacatur
New York court rules two consecutive errors by insurance claims examiner - failing to forward summons and default motion - disallow default judgment vacatur despite reasonable excuse claims.
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Extraordinary fee
Court rejects extraordinary attorney fees in no-fault case, finding issues weren't novel enough despite favorable outcome for plaintiff's counsel.
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Default reinstated on utter technicality
NY court reinstates default judgment on technicality despite defendant's motion, highlighting critical procedural requirements for vacating defaults under CPLR 5015(a).
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Court addresses lack of meritorious defense and fails to evaluate reasonable excuse
Court case examining insurance company's failure to demonstrate meritorious defense when vacating default judgment due to accident date discrepancy in no-fault claim.
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IME no-show/ failure to object during claims stage is fatal to later objection
Court ruling confirms that failing to respond to IME requests during claims stage prevents later objections to their reasonableness in no-fault insurance cases.
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