You won't get paid. You probably won't get any recognition, but you can do whatever you want. Even if its stupid or moderately offensive.
Author: DMG
The almost bi-monthly writing and motivational round-up
Too much caffeine. Otherwise I'd be sleeping. After a few tylenol PM, I managed to get to sleep.
I was talking to someone the other day about how important writing is. But we aren't really told how important until it is almost to late to learn. Had I known, I would have probably taken more classes that foster this skill. Maybe journalism or some such.
I never really enjoyed writing. It's a painful endeavor. And for the most part, especially in high school, I avoided. In one class we had to write a term paper. The grade was split into parts. One was an outline, the other was some index card thing, and the third was actually writing. I managed to get enouch credit to pass with my outline and index cards, so I never wrote the paper. Ok. Maybe it isn't the school. It's just me. I was a weird kid.
Roy Jacobsen1, by way of Ray Ward2 (where I found it), argues that if you can write, you will always have a job. I sometimes wonder whether good writing, or even exceptional writing, is enough. But then again, an exceptional writer is probably pretty damn smart, so exceptional (or even good) writers have that extra something. So long as they don't go kicking puppies in front of the clients, they will probably always have a job.
But writing only matters when it matters. In a volume (law) practice, does it really matter?
And who gets hired? The person or the paper?
Moving on. Have to keep the momentum going;3 keep on moving. Of course it's hard to keep the momentum, when you are getting in your own way.4 Try to be your own alpha dog and megalomaniac. Just keep calm.5 And persevere.6
Sometimes, all that isn't enough. At the very least make eye contact and smile.
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5. See 4
CPLR R. 2106 Affirming a document is not enough
CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist
State Farm Mut. Auto. Ins. Co. v Hereford Ins. Co., 2010 NY Slip Op 51543(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)
By notice of petition and petition dated May 14, 2008, State Farm Mutual Automobile Insurance Company (State Farm) commenced this proceeding to confirm a handwritten arbitration award dated June 19, 2007. Hereford Insurance Company (Hereford) opposed such relief, arguing, inter alia, that State Farm was, in effect, seeking either to vacate a final typewritten arbitration award dated July 7, 2007, thereby reinstating the handwritten award dated June 19, 2007, or to modify the July 7, 2007 award by conforming it to the June 19, 2007 award, and, as such, the proceeding was untimely as exceeding the 90-day time period within which an award may be vacated or modified (see CPLR 7511 [a]). The Civil Court denied the petition and dismissed the proceeding without prejudice to the commencement of a new proceeding, finding that the handwritten award was not in proper form because of a problem with the arbitrator's affirmation (see CPLR 7509). On appeal, State Farm contends that the petition to confirm the handwritten award should have been granted, and Hereford contends, inter alia, that the proceeding should have been dismissed with prejudice as it was not timely commenced.
CPLR 7510 permits a party to confirm an award; however, an award by definition must be in writing, signed and affirmed (CPLR 7507). For a document to be properly affirmed, there must be compliance with either CPLR 2309 or CPLR 2106. Here, the document submitted with the petition does not comply with the requisites of either statute. The handwritten award signed by the arbitrator, dated June 19, 2007, simply states: "This decision is according to my understanding of the current local law and the facts presented. I may not render a decision on a case where I or my company is directly or indirectly interested, or where there is even an appearance of bias. I affirm that I have read [*2]and understand the following."
This is not in an authorized form; the mere statement that a person affirms a document is insufficient (Slavenburg Corp. v Opus Apparel, Inc., 53 NY2d 799 [1981]). State Farm's assertion that arbitrators have been using this vague language for years is irrelevant. Consequently, the Civil Court acted within its discretion in allowing petitioner a further opportunity to submit an award in proper form for confirmation. Accordingly, the order is affirmed.
The bold is mine.
The NYLJ has something special for you.
My week started off with the littlest child breaking my glasses into two. As you can see, I fixed it with a mix of crazy glue and sewing thread. Now when I wear them I look like Sloth and it makes my vision all crazy like. And today, while I was walking home I walked past an electronics store with a Pickachu statute on the outside and I swear, it looked like it was flipping me the bird. I blame that on my lack of sleep. What I can't explain is that for second, I was genuinely pissed at Pickachu.1
And onto the law. Yesterday's Law Journal had one of those special fancy pants pull out sections: Court of Appeals and Appellate Practice. One of the sections, indeed, the most important section is, Civil Practice: Substantive Impact of the CPLR. Sure, there are other sections, but you didn't come here for them. You can here to see if I would actually fight a statue of a cartoon character and read about the CPLR.
The section covers, among other things CPLR CPLR § 205(a), CPLR § 5511, CPLR § 5304, CPLR § 901(a).
The discussion of CPLR 205(a) revolved around Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511 (Ct. App., 2009), a case I posted way back when. Next is CPLR 5511. The author, Thomas F. Gleason, starts with Batavia Turf Farms v. County of Genesee, 91 NY 2d 906 (Ct. App. 1998), a remarkably terse decision. From there he moves to Adams v Genie Indus., Inc., 14 NY3d 535 (Ct. App. 2010), a case I didn't post. Adams, Mr. Gleason writes, rejected the "more restrictive premise of Batavia, viz., "a stipulation on one issue (such as damages) would foreclose an appeal on other unrelated issues, because a party who had consented to an order could not claim to be aggrieved by any part of it within the meaning of CPLR 5511."2
In his discussion of class actions, namely CPLR 901(a), he refers to City of New York v Maul, 14 NY3d 499 (Ct. App. 2010), another case I managed to miss.
There's more. But you have to go read it for yourself.
Norman A. Olch, blogger and appellate guru, provides a several book reviews, including Making Your Case, by Scalia and Garner. Everyone should read it. You shouldnt need him to tell you to, but, if it that's what it takes, then fine.
Harry Steinberg has a must read section on how not to completely screw up your appeal. Part of it involves preserving the issues for appeal. A decision came out today on just that issue: Arrieta v Shams Waterproofing, Inc., 2010 NY Slip Op 06508 (App. Div., 1st 2010).
I might add some more later.
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1. I'm recycling facebook updates today.
2. For more cases discussing what it means to be "aggrieved" click HERE. I think all of them are from the Appellate Division, Second Department. Mixon v TBV, Inc., 2010 NY Slip Op 05521 (App. Div., 2nd, 2010) is the most recent and probably the most useful.
Rare no-fault suicide decision
It really isn't a suicide decision. I just needed a title so I could test out the post by email thing. As it turns out, it works terribly.
Westchester Med. Ctr. v Government Empls. Ins. Co., 2010 NY Slip Op 32295(U) (Sup Ct, Nassau County 2010)
Today there was a No-Fault Appellate Term decision which is only interesting because of the dissent.
Ortho-Med Surgical Supply, Inc. v MVAIC, 2010 NY Slip Op 51526(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)
We'll skip straight to the dissent.
Defendant presented an affidavit from a claims representative attesting to a procedure wherein a denial is placed in an addressed envelope and then dropped in the claims department's "outgoing mail basket." According to the claims representative, the contents of the mail basket are collected daily by a mailroom employee, who then affixes postage to the envelopes and "puts it in the mailbox" for delivery by the U.S. postal service. In my opinion, such an affidavit is insufficient to demonstrate mailing, for it merely concludes that the mail is sent. Defendant's affiant did not demonstrate firsthand knowledge of the procedures of the mailroom to establish that the denial had been mailed to plaintiff (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227 [1995]). Consequently, defendant's motion for summary judgment dismissing the complaint should have been denied.
Finally, Barshay over at NFP posted an interesting decision on an OSC to consolidate and stay, among other things. [Update 9/5] The decision made its way to the slip op site: Urban Radiology, P.C. v GEICO Ins. Co., 2010 NY Slip Op 51554(U) (Civ Ct City NY, Kings County). And on 9/3 there was an article in the NYLJ about doing away with the 30 day rule. It's wrongheaded, but I'll leave the discussion of that to those that cover it.
On Collateral Estoppel
Frankel v J. P. Morgan Chase & Co., 2010 NY Slip Op 06476 (App. Div., 2nd 2010)
We reject the appellants' argument that the Second Circuit's order should be given collateral estoppel effect on the issue of whether the powers of attorney were in fact irrevocable. For collateral estoppel to be invoked, "[t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling" (Buechel v Bain, 97 NY2d 295, 303-304, cert denied 535 US 1096; see Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199). Furthermore, collateral estoppel is available "only when it is clear that the prior determination squarely addressed and specifically decided the issue" (O'Connor v G & R Packing Co., 53 NY2d 278, 280). The Second Circuit's order does not expressly determine the issue of whether the powers of attorney are revocable, nor, under the circumstances, can we say that the order "necessarily decided" that issue (see Buechel v Bain, 97 NY2d at 303). It is not appropriate to speculate as to what questions may have been considered by the Second Circuit and, therefore, we reach the issue of whether the powers of attorney were revocable.
The bold is mine.
So what are you doing this weekend?
If you work in any office, you're bound to get this question on Friday. Same if you go to court. My answer is always the same: Not a damn thing.
I do this. I sit at the computer and read, looking for things to write. I take a walk with the wife and kids. Sometimes I walk the dog too. But other than that, I don't go anywhere or do anything. I probably should.
Right now I'm watching a tv show on Ranger School. Thirty people quit their first day. Thirty out of Three-Hundred. Another Fourty quit after the second day.
It makes me wonder if we should have a better process for thinning out the herd of law school applicants. Not after law school like the Bar. During the first year. Maybe only the first semester. Make it harder. Make it more stressful. Those that don't make it will save themselves a hundred grand of debt and a lifetime of misery. Substantially less people will make it to the second year than do in most law schools. This will cut down on the amount of lawyers running around the country and increase the overall quality of the lawyers entering the world.
CPLR § 4106; § 4113(a); and a missing witness
CPLR § 4106 Alternate jurors
CPLR § 4113 Disagreement by jury
(a) Unanimous verdict not required. A verdict may be rendered by not less than five-sixths of the jurors constituting a jury.
Cornell Univ. v Gordon, 2010 NY Slip Op 06394 (App. Div., 1st, 2010)
Inasmuch as defendant fully consented to -— indeed even proposed -— having the two alternate jurors deliberate and render a verdict with the regular jurors, she has failed to preserve her argument that the court committed reversible error in submitting the case to a jury of eight persons rather than six (see Fader v Planned Parenthood of N.Y. City, 278 AD2d 41 [2000]; see also Sharrow v Dick Corp., 86 NY2d 54, 59-60 [1995]; Waldman v Cohen, 125 AD2d 116, 118-124 [1987]). Also unpreserved, for failure to timely object, is defendant's argument that the 6 to 2 jury votes in favor of plaintiffs were contrary to the requirement of CPLR 4113(a) that a verdict must be rendered by not less than five- sixths of the jurors constituting a jury (see Harvey v B & H Rests., Inc., 40 AD3d 241, 241 [*2][2007]). We note, however, with respect to the merits, that while CPLR 4106 requires that alternate jurors be discharged after the final submission of the case, there was no substitution here of the two alternates for regular jurors after deliberations had begun, the circumstance that invalidated the jury deliberations in Gallegos v Elite Model Mgt. Corp. (28 AD3d 50, 54-55 [2005]), and that all eight jurors deliberated as a group from start to finish and reached a verdict together.
We reject defendant's contention that the court erred in giving a missing witness charge due to her failure to testify. While much of the trial indeed focused on the amount of attorneys' fees that would constitute a reasonable award, an issue about which defendant would not likely have had anything meaningful to contribute, the issue of whether attorneys' fees were properly awardable at all was also submitted for the jury's consideration, an issue that turned, at least in part, on the actions that defendant took to have the remaining plumbing violation removed. As plaintiffs' lay witness testified that defendant was not cooperative in producing the documents necessary to certify removal of the plumbing violation, defendant could be expected to dispute those facts or to explain why she
cannot (see Crowder v Wells & Wells Equip., Inc., 11 AD3d 360, 361 [2004]).
You can find a more detailed analysis here.
Pay Attention
I didn't think there would be this much dead space on the right side. Weird. Very Weird. Normal posts will resume tomorrow. Until then, keep your head on a swivel.
No-Fault with a tiny tiiiiiny tap of CPLR
caddyshack
CPLR R. 2214 Motion papers; service; time
CPLR R. 4518 Business records
22 NYCRR § 208.17 Notice of trial where all parties appear by attorney.
22 NYCRR § 208.4 Papers filed in court; index number; form; label.
CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentis
CPLR § 3123 Admissions as to matters of fact, papers, documents and photographs
A relative ton of no- fault decisions came out today from the Appellate Term, Second Department. Again, I'm not posting them because you care, but because It's easy for me to find cases when I post them. For serious discussion, head over to JT and NFP.
There are, however, some interesting procedural nuances in the decisions, making them almost relevant here.
PEERS
Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 51442(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)
We note, at the outset, that plaintiff's "Supplemental Affirmation in Opposition" is, in reality, a sur-reply, for the submission of which no showing of "good cause" had been made and which should not have been considered by the Civil Court and has not been reviewed on this appeal (see CPLR 2214 [c]; McMullin v Walker, 68 AD3d 943, 944 [2009]; Graffeo v Paciello, [*2]46 AD3d 613, 615 [2007]; Flores v Stankiewicz, 35 AD3d 804, 805 [2006]; Severino v Classic Collision, 280 AD2d 463 [2001]).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Muscatello v City of New York, 215 AD2d 463 [1995]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "It is axiomatic that summary judgment requires issue-finding rather than issue-determination and that resolution of issues of credibility is not appropriate" (Greco v Posillico, 290 AD2d 532, 532 [2002] [citation omitted]). The court, on a motion for summary judgment, should not determine issues of credibility or the probability of success on the merits, but should only determine whether there is a triable issue of fact (Venetal v City of New York, 21 AD3d 1087 [2005]; Greco, 290 AD2d 532). The existence of triable issues of fact precludes a finding of a prima facie entitlement to judgment as a matter of law (Wilson-Toby v Bushkin, 72 AD3d 810 [2010]; see Brown v Outback Steakhouse, 39 AD3d 450, 451 [2007]; Gray v South Nassau Communities Hosp., 245 AD2d 337 [1997]; Muscatello, 215 AD2d at 464).
Although defendant's papers established, prima facie, based on objective medical evidence, that the assignor's injuries did not arise from the accident, we find that the affirmation in opposition, written by Dr. Fealy, the surgeon who actually performed the procedure on the assignor, read in conjunction with the other medical and hospital reports indicating that the assignor had complained of left knee pain within days of the accident, is sufficient to raise an issue of fact that must be resolved at trial.
Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51467(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)
In support of its motion for summary judgment, defendant annexed to its papers an affirmed peer review report, which found the MRIs in question to be medically unnecessary. However, also annexed to the moving papers were defendant's independent medical examination report, which found one of the MRIs to be medically necessary, and other reports that contradicted facts set forth in the peer review report. Since defendant's moving papers are contradictory as to whether there was a lack of medical necessity for the services at issue, defendant failed to establish its prima facie entitlement to summary judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant's motion was properly denied (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
There is a Golia dissent.
Mega Supply & Billing, Inc. v Larendon Natl. Ins. Co., 2010 NY Slip Op 51452(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)
CPLR R. 3212(f)
VERIFICATION
Eagle Surgical Supply, Inc. v Travelers Indem. Co., 2010 NY Slip Op 51456(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)
Although defendant demonstrated that it had timely requested verification of the claim (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant failed to establish that plaintiff did not provide the requested verification. Defendant's litigation examiner did not even allege that the requested verification was outstanding, and defendant's attorney failed to demonstrate that she had personal knowledge to support her assertion of defendant's non-receipt of such documents (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Feratovic v Lun Wah, Inc., 284 AD2d 368, 368 [2001]; V.S. Med. Servs., P.C. v New York Cent. Mut. Ins., 20 Misc 3d 134[A], 2008 NY Slip Op 51473[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
There is a Golia "atta boy" at the end.
Total Family Chiropractic v Mercury Cas. Co., 2010 NY Slip Op 51470(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010).
In an attempt to establish that the time period in which it had to pay or deny the claims was tolled due to outstanding verification requests, defendant relied upon spreadsheets annexed to the affidavit of its claim representative. However, because the claim representative did not establish that the spreadsheets constituted evidence in admissible form (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]), defendant has not shown that it made timely verification requests.
While defendant has failed to demonstrate that it is not precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), in any event, defendant is not precluded from raising the defense of fraudulent procurement of the insurance policy (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). The certified transcripts of plaintiff's assignors' examinations under oath, annexed to defendant's motion papers, support defendant's assertion that the assignors' testimony at an examination before trial would be material and necessary to the defense of fraudulent procurement of an insurance policy (see CPLR 3101 [a]). Since plaintiff served the notice of trial two weeks after defendant served its answer and it is uncontroverted that defendant timely moved to vacate the notice of trial within 20 days of its receipt of same (see Uniform Rules for Civ Ct [22 NYCRR] § 208.17 [c]), the branch of defendant's motion seeking to strike the notice of trial is granted. However, as plaintiff's assignors are not directors, members or employees of plaintiff, defendant must subpoena them to compel their appearance at examinations before trial (see CPLR 3016 [b]; see also A.M. Med. Servs., P.C. v Allstate Inso Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).
Accordingly, the judgment is reversed, the order entered February 13, 2009 is vacated, the branch of defendant's motion seeking summary judgment dismissing the complaint is granted to the extent of dismissing the complaint insofar as it sought to recover upon the claim form dated March 22, 2007, the branch of defendant's motionseeking to strike the notice of trial and to compel plaintiff's assignors to attend examinations before trial is granted to the extent of striking the notice of trial, plaintiff's cross motion for summary judgment is denied, and the matter is remitted to the Civil Court for all further proceedings.
So the NOT was stricken so that defendant could issue a non-party subpoena for an EBT. What happens when the non-party doesn't appear, assuming, of course, that the non-party doesn't appear. It would make sense for the Appellate Term to provide some guidance. Read JT's comments.
Almost forgot. There is an article in the NYSBA journal on non-party discovery by David Horowitz.
Points of Health Acupuncture, P.C. v Lancer Ins. Co., 2010 NY Slip Op 51455(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)
The "who cares if he doesnt know how he knows, he's a partner" exception to Fogel.
MVAIC (condition precedent or coverage or both)
Central Radiology Servs., P.C. v MVAIC, 2010 NY Slip Op 51454(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)
Under the circumstances presented, the Civil Court should have considered the affidavit submitted by MVAIC's claim representative rather than sua sponte rejecting it due to a de minimis violation of Uniform Rules for the Civil Court (22 NYCRR) § 208.4. The submissions in support of MVAIC's motion for summary judgment made a prima facie showing that plaintiff's assignor had failed to timely file a notice of claim (see Insurance Law § 5208 [a]), and plaintiff failed to demonstrate that its assignor had timely filed a notice of claim or sought leave to file a late notice of claim (see Insurance Law § 5208 [b], [c]). Consequently, defendant's motion for summary judgment should have been granted. Accordingly, the judgment is reversed, the order entered February 20, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.
NOT NO-FAULT
Ferrara v De Ming Song, 2010 NY Slip Op 51472(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)
The Civil Court granted defendant's motion, finding that defendant had made out a prima facie case and that, among other things, the affirmed reports of plaintiff's medical provider in Florida, submitted in opposition to defendant's motion, were not in admissible form, as the doctor was not licensed in the State of New York and, thus, was not authorized to execute an affirmation under CPLR 2106. The court noted, however, that had the reports been in admissible form, they would have been sufficient to demonstrate a serious injury.
Plaintiff thereafter moved for leave to renew defendant's motion and, upon renewal, to deny defendant's motion for summary judgment on the ground that triable issues of fact exist. In support of the motion, plaintiff submitted an affidavit from his Florida medical provider, sworn to before a notary public commissioned by the State of Florida, and resubmitted the provider's reports. The Civil Court granted plaintiff's motion for leave to renew and, upon renewal, denied defendant's motion for summary judgment on the condition that plaintiff's attorneys pay the sum of $100 to defendant's attorneys as costs, and the sum of $100 to the New York State Lawyers Fund for Client Protection. This appeal by defendant ensued in which the sole issue raised is that the Civil Court erred in granting plaintiff leave to renew.
Contrary to defendant's contention, the Civil Court did not improvidently exercise its discretion in granting the branch of plaintiff's motion seeking leave to renew, thereby allowing plaintiff the opportunity to submit its papers in proper form (see CPLR 2221 [e]; Arkin v Resnick, 68 AD3d 692 [2009]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Joseph v Joseph, 24 Misc 3d 141[A], 2009 NY Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Shaw v Looking Glass [*2]Assoc., LP, 8 AD3d 100 [2004]; Acosta v Rubin, 2 AD3d 657 [2003]; Ramos v Dekhtyar, 301 AD2d 428 [2003]). We note that defendant has raised no objection to the form of plaintiff's resubmitted papers.
Nicholas Cabrini, Inc. v Hagenbart, 2010 NY Slip Op 51443(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)
CPLR 3123 (a) requires a party to respond to a notice to admit within 20 days of service of the notice "or within such further time as the court may allow," and further provides that "the party to whom the request is directed [must] serve[] upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail why he cannot truthfully either admit or deny those matters" (emphasis added).
After reviewing defendants' response to plaintiff's notice to admit, wherein defendants explained why they could not either admit or deny the first item in plaintiff's notice to admit and denied the other two items in the notice, we find that the Civil Court properly determined that defendants' response was not so evasive as to be a nullity.
Turning to the timeliness of defendants' response to the notice, in Alford v Progressive Equity Funding Corp. (144 AD2d 756 [1988]), a case analogous to the instant case, the plaintiffs moved for summary judgment on December 2, 1987, based on the defendants' failure to respond to the plaintiffs' notice to admit, which had been served on November 5, 1987. On December 7, 1987, the defendants served a response to the plaintiffs' notice to admit. The Supreme Court denied the plaintiffs' motion for summary judgment, and, on appeal, the Appellate Division, Third Department, held that the Supreme Court had properly exercised its discretionary power to extend the time within which the defendants had to respond to the plaintiffs' notice to admit. The Appellate Division further held that since the defendants had not admitted all of the material facts at issue, the Supreme Court had properly denied the plaintiffs' motion for summary judgment.
Similarly, defendants in the case at bar were 15 days late in serving their response to plaintiff's notice to admit. Thus, the Civil Court did not improvidently exercise its discretion in extending the time within which defendants had to respond to the notice. Since defendants have not admitted all of the material facts at issue, the Civil Court properly denied the branch of plaintiff's motion which sought summary judgment (see id.). Accordingly, the order, insofar as appealed from, is affirmed.
What, no cite to Dan Med? Bajaj? I'm disappointed. If any of you want to read further on the use of NTAs in no-fault. I co-authored an article in the NYLJ on the issue with Dave Barshay, the new author of NFP, and while the AT has not seen fit to cite to it, the Appellate Division has. Click here to get all the links and what not.
bruteforcelawyer.com 