Key Takeaway
Court permits new evidence in reply papers despite opponent's objections in New York no-fault insurance coverage dispute, highlighting procedural tactics.
This article is part of our ongoing procedural issues coverage, with 187 published articles analyzing procedural issues 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.
Matter of Hereford Ins. Co. v Vazquez, 2018 NY Slip Op 00909 (1st Dept. 2018)
“In reply, Hereford submitted documents demonstrating that the Mercedes had been sold to Lyons three days before the accident, and insured by State Farm under the same policy number previously identified, effective the same date.
Absent any surprise or prejudice to State Farm, which was aware that Hereford alleged that it had insured the Mercedes under a specified policy and which did not seek to submit a surreply, the motion court providently exercised its discretion in considering the documents submitted by Hereford in reply (see Matter of Kennelly v Mobius Realty Holdings, LLC, 33 AD3d 380, 381-382 ; Kelsol Diamond Co. v Stuart Lerner, Inc., 286 AD2d 586, 587 ; Jones v Geoghan, 61 AD3d 638, 640 ). Notably, Hereford could have sought leave to amend the petition based on the same documents, leading to the same outcome (see Matter of Allcity Ins. Co. , 199 AD2d 88 ; see also Matter of Government Empls. Ins. Co. v Albino, 91 AD3d 870, 871 ).
Since Hereford met its burden of showing “sufficient evidentiary facts” to establish a “genuine preliminary issue” justifying the stay, the motion court properly stayed arbitration pending a trial of the threshold issue of coverage”
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This is the definition of the “I got you appeal” because you missed something in your moving papers that were remedied in your reply papers which the movant knew about. On a more wholesale level, this type of case bespeaks how uncivilized the practice of law has become. It has become more about trying to hurt your opponent on procedural niceties (thereby winning) than resolving cases on the merits. As people, we should evolve. I was going through an opp that violated 2106 a few months ago. you know what I did? Emailed the plaintiff and told him to fix it.
I am sad the carrier is going to pay counsel for this appeal or even allowed this appeal to go forward. Hereford is not an evil or malicious carrier. Anyway, this type of win at all costs brought us Unitrin v. NY Medical. Same firm on both cases – anomaly? Karma has a way of catching up with us.
Related Articles
- Form defects can be corrected in reply briefs and signature authentication requirements
- Combating litigation delay tactics in no-fault insurance cases
- Second and third chances to correct procedural mistakes in motion practice
- Understanding collateral estoppel against appearing defendants in coverage disputes
- New York No-Fault Insurance Law
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
Procedural Issues in New York Litigation
New York civil procedure governs every stage of litigation — from pleading requirements and service of process to motion practice, discovery deadlines, and trial procedures. The CPLR creates strict procedural rules that can make or break a case regardless of the underlying merits. These articles examine the procedural pitfalls, timing requirements, and strategic considerations that practitioners face in New York state courts, with a particular focus on no-fault insurance and personal injury practice.
187 published articles in Procedural Issues
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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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