May 2012 – Page 3

3043. 3126: pot meet kettle

CPLR R. 3043 Bill of particulars in personal injury actions

CPLR § 3126 Penalties for refusal to comply with order or to disclose

Anderson v Ariel Servs., Inc., 2012 NY Slip Op 02038 (1st Dept., 2012)

The motion court did not improvidently exercise its discretion in denying defendants' motions to the extent that they sought dismissal and/or preclusion (see CPLR 3126; see also Gross v Edmer Sanitary Supply Co., 201 AD2d 390, 391 [1994]). Preclusion is not warranted since the record reflects that defendants themselves did not comply timely with the first preclusion order (see e.g. DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581, 582 [2011]). Moreover, plaintiff proffered a reasonable excuse for the delay, including defendants' consent thereto, and the verified complaint, which alleged that plaintiff was injured when she was struck by defendants' vehicle while crossing the street in a crosswalk, with the right of way, evidenced the existence of a meritorious claim (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]).

Plaintiff's third verified bill of particulars, which, inter alia, alleges that she had a third surgery, to remove hardware from her left tibia, the insertion of which hardware had been disclosed in an earlier bill of particulars, was a supplemental bill of particulars which concerned the "continuing consequences" of her previously identified injury, and thus, did not require prior leave of the court (Shahid v New York City Health & Hosps. Corp., 47 AD3d 798, 800 [*2][2008]; see CPLR 3043[b]). Since discovery relating to the third surgery had not previously been ordered, the court's direction of related disclosure, rather than sanctions, was appropriate.

Hear and determine, hear and report

CPLR § 4301 Powers of referee to determine

CPLR § 4201 Powers of referees to report

CPLR § 4201 Decision

Kucherovsky v Excel Med. & Diagnostic, P.C., 2012 NY Slip Op 02047 (1st Dept., 2012)

The reference in this action was clearly one to hear and determine (see CPLR 4301) rather than to hear and report (see CPLR 4201). Consequently, the referee possessed "all the powers of a court in performing a like function" (CPLR 4301), and his decision "shall stand as the decision of a court" (CPLR 4319). Since the actions of referees when they are assigned to determine an issue are tantamount to those of any sitting Supreme Court Justice, the Supreme Court may only review whether the referee exceeded the scope of the issues delineated in the order of reference (see e.g. Cohen v Akabas & Cohen, 79 AD3d 460, 461 [2010]).

On the face of the record

Interboro Ins. Co. v Fatmir, 89 AD3d 993 (2nd Dept., 2011)

To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy (see Novick v Middlesex Mut. Assur. Co., 84 AD3d 1330 [2011]; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855, 856 [2009]; Schirmer v Penkert, 41 AD3d 688, 690 [2007]; Zilkha v Mutual Life Ins. Co. of N.Y., 287 AD2d 713, 714 [2001]). A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented (see Insurance Law § 3105 [b]; Novick v Middlesex Mut. Assur. Co., 84 AD3d at 1330; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d at 856). "To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application" (Schirmer v Penkert, 41 AD3d at 690-691).

Here, the plaintiff insurance company established its prima facie entitlement to judgment as a matter of law by demonstrating that its insured made misrepresentations in his application for homeowner's insurance, and that it would not have issued the subject policy had the insured disclosed that he did not reside in the subject premises because dwellings that are not owner occupied are deemed an unacceptable risk under its underwriting guidelines (see Varshavskaya v [*2]Metropolitan Life Ins. Co., 68 AD3d at 856). In opposition, the appellant failed to raise a triable issue of fact. Although the appellant argued in opposition that the plaintiff failed to timely disclaim coverage pursuant to Insurance Law § 3420 (d), a disclaimer pursuant to Insurance Law § 3420 (d) was not required because the policy only provided liability coverage to the insured for premises which he and his household occupied for residential purposes and, thus, "the policy never provided coverage" for the claim at issue (Metropolitan Prop. & Cas. Ins. Co. v Pulido, 271 AD2d 57, 60 [2000]; see generally Zappone v Home Ins. Co., 55 NY2d 131, 138 [1982]). While the plaintiff did not argue in the Supreme Court that a disclaimer was not required, "[o]n appeal, a respondent may [as here] proffer in support of affirmance any legal argument that may be resolved on the record, regardless of whether it has been argued previously, if the matter is one which could not have been countered by the appellant had it been raised in the trial court" (Sega v State of New York, 60 NY2d 183, 190 n 2 [1983]; see Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216 [2011]; Buywise Holding, LLC v Harris, 31 AD3d 681, 682 [2006]).

3123

CPLR § 3123 Admissions as to matters of fact, papers, documents and photographs

Saline v Saline, 2012 NY Slip Op 03162 (2nd Dept., 2012)

Contrary to the defendant's contentions, the trial court properly admitted into evidence certain documents admitted by him to be authentic and upon which it based its findings of fact (see CPLR 3123; Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103; Ocampo v Pagan, 68 AD3d 1077).