Certificate of conformity waived

Todd v Green, 2014 NY Slip Op 08004 (2d Dept. 2014)

Law Office of Jason Tenenbaum, P.C, Garden City, N.Y., for appellant. (shameless self promotion)

“The Supreme Court determined that the plaintiff’s affidavit of merit, notarized in Georgia, lacked a proper certificate of conformity as required by CPLR 2309(a), and denied the motion, with leave to renew upon the submission of a proper affidavit. The plaintiff appeals.”

” A party’s right to recover upon a defendant’s failure to appear or answer is governed by CPLR 3215′” (U.S. Bank, N.A. v Razon, 115 AD3d 739, 740, quoting Beaton v Transit Facility Corp., 14 AD3d 637, 637). Thus, a plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to appear or answer (see CPLR 3215[f]; U.S. Bank N.A. v Poku, 118 AD3d 980U.S. Bank N.A. v Razon, 115 AD3d at 740; Dela Cruz v Keter Residence, LLC, 115 AD3d 700). Here, in support of his motion to enter a default judgment, the plaintiff met all of these requirements (see U.S. Bank N.A. v Poku, 118 AD3d 980). Although the Supreme Court [*2]found that the plaintiff’s affidavit lacked a proper certificate of conformity, it should have considered the affidavit since the absence of a certificate of conformity is not a fatal defect (see Midfirst Bank v Agho, 121 AD3d 349; Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960; Fredette v Town of Southampton, 95 AD3d 940, 942). Further, even if the subject certificate of conformity was inadequate, the defendant failed to answer or appear in opposition to the motion, and it was inappropriate for the Supreme Court to, sua sponte, raise the issue on the defendant’s behalf (see Midfirst Bank v Agho, 121 AD3d 349).

The moral of the story  is to take a stand when you think the Court is treating you like a no-fault defendant in Civil Kings, Special Term.  The appellate courts sometimes get it right.

Defective notarization

Clarke v Scottsdale Ins. Co., 2014 NY Slip Op 51586(U)(App. Term 2d Dept. 2014)

(1) 2309 defect does not matter anymore.  “While plaintiff timely objected to the form of defendant’s affidavit, in that it did not comply with the requirements of CPLR 2309 (c), the absence of a certificate of conformity is not a fatal defect”

(2)”Nevertheless, we find that the affidavit of defendant’s claims analyst was not in proper admissible form for a different reason, to wit, that the notary public never stated therein that the claims analyst had personally appeared before her and was personally known to her or had satisfactorily established her identity (see Galetta v Galetta, 21 NY3d 186 [2013]; see also Fryer v Rockefeller, 63 NY 268 [1875]; Gross v Rowley, 147 App Div 529 [1911]; cf. Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). “

Missing document charge not granted

Knight v M & M Sanitation Corp., 2014 NY Slip Op 07631 (2d Dept. 2014)

This serious injury trial was problem for Plaintiff on may accounts.  But there was discussion on a missing document charge for the failure to obtain photographs:

“Although there was testimony that McCarron took pictures at the accident scene with a disposable camera, the plaintiff failed to establish that any photographs of the accident scene existed, or that he moved to compel their production during discovery (see McGloin v Golbi, 49 AD3d 610Crespo v New York City Hous. Auth., 222 AD2d 300).”

Insurable interest

Matter of Progressive Specialty Ins. Co. v Alexis, 2014 NY Slip Op 07668 (2d Dept. 2014)

The term insurable interest is always interesting.  What is it really?  Well the Appellate Division discusses this a bit:

“As the owner of the vehicle, So Mi Ko had an insurable interest for which New York Central provided coverage (seeInsurance Law § 3401; Scarola v Insurance Co. of N. Am., 31 NY2d 411, 412-414; Azzato v Allstate Ins. Co., 99 AD3d 643, 650-651). Accordingly, New York Central’s cancellation of So Mi Ko’s policy on this ground was improper and, therefore, invalid (see Matter of Lumbermens Mut. Cas. Co. [Brooks], 13 AD3d 198, 199; Nassau Ins. Co. v Hernandez, 65 AD2d 551, 552; cf. Matter of State Farm Mut. Auto. Ins. Co. v Cherian, 202 AD2d 434, 435-436).”

The inability to recall which shoulder was hurt damages the plaintiff’s case

Fludd v Pena, 2014 NY Slip Op 07747 (1st Dept. 2014)

This 5102(d) case is interesting because it stands for the proposition that the failure to make complaints of pain at the IME of the affected body parts will negate the requirement to examine that body part.  I am going to say that is the case even when there is record evidence of pain at that body part.

“Defendants were not required to present medical evidence with respect to plaintiff’s alleged injury to her left shoulder, since plaintiff failed to recall at her deposition which shoulder was injured (see Thomas v City of New York, 99 AD3d 580, 582 [1st Dept 2012], lv denied 22 NY3d 857 [2013]). Moreover, plaintiff made no complaints about any shoulder injury when she was examined by defendants’ expert.


Permanent consequential v. Significant limitaton – the value of early surgery

Sutliff v Qadar, 2014 NY Slip Op 07769 (1st Dept. 2014)

This case really discusses the danger on the personal injury side of the “significant limitation prong” of 5102(d).

Factually, there was an accident in December 2009.  The Claimant presumably had standard PT and other treatments.  He had positive clinical tests and other positive objective tests.  The Plaintiff underwent shoulder surgery February, 2010.

We learn that there was  minor limitation of the shoulder in June, 2010. Presumably. an IME in 2012 or 2013 found normal range of motion and attributed the injury to other forces.

On this record the following happened:

Permanent Consequential

(1) plaintiff failed to raise a triable issue of fact as to the existence of a “permanent consequential” limitation of use of the left shoulder.

(2) On the causation issue (and this is interesting): “To the extent plaintiff argues that the orthopedist found a causally related injury, the orthopedist opined that the causally related injury amounted to only a minor contusion and, based on his review of plaintiff’s medical records, attributed the more serious symptoms to the preexisting injury (see Bravo v Martinez, 105 AD3d 458, 458 [1st Dept 2013]).”

Significant Limitation

“The affirmed reports of plaintiff’s treating physician found substantial limitations and positive clinical tests results in January 2010, a month after the accident, and plaintiff underwent shoulder surgery in February 2010 (see Thomas v NYLL Mgt. Ltd., 110 AD3d 613, 614 [1st Dept 2013]; cf. Vasquez v Almanzar, 107 AD3d 538, 539-540 [1st Dept 2013]). The treating physician also noted that plaintiff’s prior shoulder injury improved with therapy, and opined that the subject accident caused significant injuries to the left shoulder. This evidence, as well as evidence that plaintiff returned to work full time over a year prior to the subject accident, raises a triable issue of fact as to whether this accident caused an aggravation or exacerbation of the prior injury (see Nelson v Tamara Taxi Inc., 112 AD3d 547, 548 [1st Dept 2013]). Further, plaintiff submitted an MRI report performed after the accident, and an operative report of his orthopedic surgeon, which provide objective proof of a preexisting partial tear that may have been aggravated by the subject accident, and of a new symptom following this accident ”

What do I take out of this?

Causation is varies on the prongs of the statute, which is strange.  But it tells us that a positive MRI, clinical results and early surgery will satisfy significant limitation.  Also, a Plaintiff who went back to work from a prior injury but then lost time from work will raise an issue of fact as to causation.

This one hurts the carriers, and I think increases the importance of early surgery in increasing the value of a PI case.  I cannot believe I am saying that exposing people to the risks normally attendant with surgery prematurely will many times shield the Plaintiff from being nonsuited on a significant linitation claim.

No Fault angle

No Fault covers any exacerbation.  We see (at least as to permanent consequential) that this not the case: “the orthopedist opined that the causally related injury amounted to only a minor contusion and, based on his review of plaintiff’s medical records, attributed the more serious symptoms to the preexisting injury”

In no-fault, any causal relationship would be payable by no-fault.  On the PI side, if you can disaggregate the symptoms, causation is not as clear cut and will go to the jury.  I have been looking for a case where the theory that the BI coverage on causation is less expansive as no-fault.


Default granted where answer is 6 months later

Rosenblatt v New York City Tr. Auth., 2014 NY Slip Op 07575  (1st Dept. 2014)

“Defendants demonstrated an excuse of law office failure through the assigned attorney’s detailed affirmation setting forth the series of mistakes that resulted in the granting of plaintiff’s motion for entry of a default judgment, just after defendants had served an answer, which was about six months late

This case is another illustration of the ease that default judgments can be vacated in the First Department, as opposed to the Second Department, where the Courts take a more stern stance towards vacating default judgments.

Jursidictional defect (it really isn’t)

Tribeca Lending Corp. v Bartlett, 2014 NY Slip Op 07429 (1st Dept. 2014)

The realm of procedural snafus that can trigger the existences of jurisdiction defects, sufficient to warrant 5015(a)(4) treatment are quite narrow.  This case expresses this sentiment quite nicely.

“The alleged defects raised by defendant do not involve jurisdictional defects within the meaning of CPLR 5015(a)(4), and thus do not provide a basis for vacatur under that provision (Wells Fargo, N.A. v Levin, 101 AD3d 1519, 1521 [3d Dept 2012], lv dismissed 21 NY3d 887 [2013] [lack of standing is not a jurisdictional defect]; see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [1st Dept 2009] [lack of a certificate of conformity is "not a fatal defect"]; see also Varon v Ciervo, 170 AD2d 446, 447 [2d Dept 1991] [untimely filing of proof of service is not a basis to vacate a notice of pendency]).”

The usual reminder is that it is quite difficult to get out of a judgment is resort is not made to 5015(a)(1)

A hook to apply Unitrin in the Second Department through Clennon

Prestige Med. P.C. v Travelers Home & Mar. Ins. Co., 2014 NY Slip Op 24317 (Civ. Ct. 2014)

You can read this Civil Court case a bunch of different ways.  There are two statements of law that I think ring true.

Statement number 1

The first is that Unitrin does apply in the Second Department.  Judge Levine noted that Interboro v. Clennon  cited Unitrin for the proposition of law that the failure to cooperate with an EUO allows a disclaimer.  Unitrin of course stands for the proposition that a failure to attend IME’s voids coverage.  Unitrin was supported through American Transit v. Lucas, where that Court cited to NY Presbyterian v. Countrywide for the proposition of law that the failure to attend IMEs is an absolute coverage defense.  In American States v. Huff (an extremely important case in this arena for so many reasons) the Court held that the failure to participate in an EUO is an absolute coverage defense.  This would be attending and saying “I am not going to answer questions” or even prior to a first no show calling the insurance company or their agent and saying “I am not going to appear, get lost.”

Judge Levine drawing in a decision by Judge Hirsh (which he probably will not follow because he is bound by the Appellate Term’s failure to recognize or cite Clennon in favor of Lincoln General from 2009), has held that she will follow Unitrin.  Or course, JHO Spodek told the world he will not let “peer hearsay” into evidnec despite what the Appellate Term says, and we all know where that got his cause.  A trailblazer with an illusory cause?

Statement number 2

The second statement is that a provider EUO must be scheduled within 15 business days of the completed EIP EUO to preserve the toll.  This is nothing new, as the Appellate Term, First Department held this way last year in a NYCM case.  She goes on to say that Untirin will not be followed if the verification, viz, provider EUO demand is mailed more than 15 business days following the EIP EUO, and the day for day deductions in the regulations for timeliness of denials would apply.  This is probably a bit off base, trying to apply a hybrid of Unitrin and Lincoln General.  I think the Appellate term was implicit in holding that if the provider EUO demand is scheduled more than 30-days following the EIP EUO (verification issued more than 30-days following receipt of prior verification would run afoul of Ins Law. 5106 and Westchester v. GMAC [2007]), the toll would be lost and the coverage defense would be lost.

Looking beyond the face of the agreement

South Shore Neurologic Assoc., P.C. v Mobile Health Mgt. Servs., Inc., 2014 NY Slip Op 06963 (2d Dept. 2014)

Self-referrals and fee splitting can garner attention whenever any payor wishes to avoid a contractual or quasi-contractual obligation.  It transcends no-fault.  This one looks interesting:

“South Shore established its prima facie entitlement to judgment as a matter of law declaring that the commercial relationship constituted an unlawful fee-splitting arrangement in violation of Education Law § 6530(19) and 8 NYCRR 29.1(b)(4) by submitting documents and deposition testimony showing that certain contracts were a pretext to justify the appellants’ receipt of one third of the profits of South Shore’s MRI practice ”

The net effect of this fee sharing arrangement was left undecided according to the Appellate Division.

Contact Jason Tenenbaum
(516)750-0595 (T) (516)414-2869 (F) Jason@jtnylaw.com
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