Author: DMG

Waiver

Agrawal v Metropolitan Life Ins. Co., 2011 NY Slip Op 07928 (1st Dept., 2011)

The decedent, plaintiffs' mother, represented in her application to obtain life insurance from defendant that she did not have diabetes or any in-force insurance other than a policy issued previously by defendant. She also made representations as to her net worth. After a lengthy investigation, defendant determined that the decedent had misrepresented her medical history, her in-force insurance and her net worth. However, in its repudiation letters, sent after the completion of its investigation, defendant based its denial of payment on the sole ground of the decedent's misrepresentation of her net worth.

To the extent defendant relies on the figure of $5-6 million in support of its assertion that the decedent misrepresented her net worth, its reliance is misplaced. The figure of $5-6 million was not included in the insurance application and therefore cannot be considered (see Insurance Law § 3204[a]; Tannenbaum v Provident Mut. Life Ins. Co. of Phila., 53 AD2d 86, 104-105 [1976], affd 41 NY2d 1087 [1977]). There is no dispute that the decedent satisfied the $500,000 net worth valuation asserted in her application.

Defendant's failure to assert the other defenses in its initial repudiation constitutes a waiver of those defenses for purposes of denying liability under the policies (Estee Lauder Inc. v OneBeacon Ins. Group, LLC, 62 AD3d 33, 35 [2009]).

Back to the pre note of issue status

CPLR R. 3404 Dismissal of abandoned cases

 

The last time I saw this was in Tejeda v Dyal, 2011 NY Slip Op 03125 (1st Dept., 2011)

Goldstein v Silverstein, 2011 NY Slip Op 07921 (1st Dept., 2011)

Plaintiff improperly argues for the first time on appeal that dismissal of the action pursuant to CPLR 3404 was incorrect because the striking of the action from the trial calendar had returned the case to its pre-note of issue status (see Nieman v Sears, Roebuck & Co., 4 AD3d 255, 255 [2004]). Plaintiff neither made a motion to restore the matter to the calendar within one year nor proffered an affidavit demonstrating that he had a meritorious cause of action.

 

Post accident repairs

CPLR § 4545 Admissibility of collateral source of payment

CPLR § 3101 Scope of disclosure

Stolowski v 234 E. 178th St. LLC, 2011 NY Slip Op 08222 (1st Dept., 2011)

Defendant bears the burden of establishing by clear and convincing evidence that it is entitled to an offset for any collateral source payment that represents reimbursement for a category of loss that corresponds to a category of loss for which damages are awarded in this action (see CPLR 4545; Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81 [1995]. Thus, disclosure of the death benefits that were or will be received by plaintiffs Bellew and Meyran is material and necessary in defense of this action (see CPLR 3101). The collateral source hearing at which a defendant has the opportunity to make the above showing is held after a verdict has been rendered in the plaintiff's favor. However, "[p]retrial discovery is available so defendants can acquire information and documents that may later be used to support a motion for a collateral source hearing" (Firmes v Chase Manhattan Auto. Fin. Corp., 50 AD3d 18, 35 [2008], lv denied 11 NY3d 705 [2008]).

The records of defendant's post-fire repairs and remedial measures do not fall within any of the recognized exceptions to the general rule that evidence of post-accident repairs is generally inadmissible and may never be admitted to prove an admission of negligence (see Fernandez v Higdon El. Co., 220 AD2d 293 [1995]). Contrary to plaintiffs' contentions, "general credibility impeachment" is not an exception. Control is not at issue here since defendant concedes that it owns the premises (see Hyman v Aurora Contrs., 294 AD2d 229 [2002]). The fire department's full investigation of the fire, which produced diagrams and photographs, provides evidence of the existence of a defective condition (compare Mercado v St. Andrews Hous. Dev. Fund Co., 289 AD2d 148 [2001] [plaintiff entitled to seek disclosure of post-accident repairs or modifications where defective condition of sidewalk could not be proven otherwise]; Longo v Armor El. Co., 278 AD2d 127 [2000] [same; parts removed during repair of defective elevator were discarded]).

Interpleader fees

CPLR § 1006 Interpleader

Appel v Giddins, 2011 NY Slip Op 08215 (1st Dept., 2011)

Giddins's claim for costs and reasonable attorneys' fees may proceed because, notwithstanding plaintiff's characterization, her claims against Giddins are based on Giddins's performance of its duties as escrowee, and the contract provides for Giddins's recovery of costs and reasonable attorneys' fees incurred in connection with the performance of its duties as escrowee, which include responding to plaintiff's claims (see CPLR 1006[f]; Sun Life Ins. & Annuity Co. of N.Y. v Braslow, 38 AD3d 529 [2007]).

Ouch

Weisburst v Dreifus, 2011 NY Slip Op 08207 (1st Dept., 2011)

The court did not abuse its discretion in finding that defendant's underlying motion for an emergency stay contained "false charges [against plaintiff] that were expressed by means of a tortured and very partial rendering of the facts that can only have been deliberately crafted to mislead" and was therefore frivolous within the meaning of 22 NYCRR 130-1.1 (see e.g. Rogovin v Rogovin, 27 AD3d 233 [2006]).

Compelled

New Line Stone Co., Inc. v BCRE Servs. LLC, 2011 NY Slip Op 08308 (1st Dept., 2011)

The motion court providently exercised its discretion in requiring defendants to provide more detailed responses to plaintiff's interrogatories 4 through 12, which sought the facts underlying defendants' seven affirmative defenses and three counterclaims. Most of defendants' responses provided general statement of facts, and some responses provided no facts at all. Moreover, defendants failed to meet their burden to establish that the information sought was privileged (see JP Foodservice Distribs. v Sorrento, Inc., 305 AD2d 266 [2003]). However, defendants are not required to respond to interrogatory number 13, since it is repetitive.

Interesting

Tsioumas v Time Out Health & Fitness, 2011 NY Slip Op 08307 (1st Dept., 2011)

The July 2009 order, which was affirmed on a prior appeal (78 AD3d 619 [2011]), vacated an order dismissing the action for plaintiff's failure to restore it to the calendar within one year of it being marked off. Contrary to plaintiff's position, our order of affirmance in no way altered or modified the terms of the July 2009 order, which directed plaintiff to serve a copy of the order with notice of entry upon defendant within 20 days of the date the order was issued and stated that "plaintiff may move . . . to restore this action to the trial calendar" upon compliance with the court's directive. Plaintiff did not serve a copy of that order with notice of entry until December 22, 2009, more than four months after the expiration of the 20-day deadline.

Plaintiff moved to modify the portion of the July 2009 order relating to service of the order. The motion was properly denied in light of plaintiff's conclusory assertion of an unspecified "clerical error" as an excuse for the delay and failure to address the subsequent delay in moving for modification. In any event, the delays are part of a pattern of neglect (see Gavillan v City of New York, 11 AD3d 217 [2004]).

3212(a)

Luciano v H.R.H. Constr., LLC, 2011 NY Slip Op 08305 (1st Dept., 2011)

Supreme Court properly denied the motion as untimely. Absent other directive from the court, summary judgment motions should be made no later than 120 days "after the filing of the note of issue" (CPLR 3212[a] [emphasis added]). It is undisputed that the insurer did not move for summary judgment until two years after plaintiff filed the note of issue. Although the insurer was not served with the note of issue, it does not deny that it knew about its filing (cf. McFadden v 530 Fifth Ave. RPS III Assoc., LP, 28 AD3d 202, 202-203 [2006]). Accordingly, the motion court correctly required "a satisfactory explanation for the untimeliness" and properly determined that no such explanation was given (Brill v City of New York, 2 NY3d 648, 652 [2004]).

We reject the insurer's argument, raised for the first time on appeal, that it did not believe that the 120-day period had begun to run, because a note of issue had been filed only in the main action, not in the "severed" third third-party action. By order entered January 17, 2007, the court (Lucindo Suarez, J.) granted the insurer's motion to sever the third third-party claims only to the extent of severing the claims for trial on the condition that they were not "disposed of prior thereto." Accordingly, as the court explicitly stated in its order, the actions remained consolidated through discovery. Thus, plaintiff's filing of the note of issue started the running of the 120-day period, and the insurer's "failure to appreciate that its motion was due . . . is no more satisfactory than a perfunctory claim of law office failure" (Giudice v Green 292 Madison, LLC, 50 AD3d 506, 506 [2008][internal quotation marks omitted]).

Given the foregoing, we need not reach the merits of the motion.