No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law

This is not a new concept.   If you do not preserve your objection, then you waive the right to challenge the proffered piece of evidence.  In the no-fault context, we saw it in Continental v. Mercury, where Plaintiff’s failure to specifically object to the admissibility of an affidavit rendered the argument waived.  There also are a legion of 2309(c) cases where this issue crops up.  Also, in a case that never seems to get noticed, the Appellate Division in St. Vincent’s Hosp. & Medical Center v. Nationwide Mut. Ins. Co., 42 AD3d 523 (2d Dept. 2007), addressed a similar issue as set forth below:

“The Supreme Court correctly denied that branch of the motion which was for summary judgment in favor of St. Vincent’s on the first cause of action. The Supreme Court correctly concluded that the defendant issued a timely denial of claim on the prescribed N-F 10 form…and, accordingly, raised a triable issue of fact on the first cause of action

We decline to consider the issue of the adequacy of the defendant’s denial of claim, and specifically, St. Vincent’s argument that the N-F 10 form failed to adequately set forth the reason that the no-fault claim was denied. St. Vincent’s raised this issue for the first time in its reply papers, and there is no evidence that the defendant had an opportunity to submit a sur-reply.”

While St. Vincent did not discuss the issue regarding raising issues for the first time on appeal, the reasoning of the Appellate Division and the fact pattern in St. Vincent bears a striking resemblance to this interesting case that was decided immediately prior to Christmas, 2009 entitled Mid Atl. Med., P.C. v Electric Ins. Co., 2009 NY Slip Op 52597(U) (App. Term 2d Dept. 2009):

“Plaintiff further argues that defendant is precluded from relying upon plaintiff’s untimely notice of claim because defendant’s denial of claim form did not advise plaintiff that “late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice,” as required by Insurance Department Regulations (11 NYCRR) § 65-3.3 (e). Said issue was likewise raised for the first time on appeal, as it differs from plaintiff’s contention in the Civil Court, which did not challenge the sufficiency of defendant’s denial of claim form but, [*2]rather, asserted that defendant did not demonstrate that plaintiff had failed to provide a reasonable justification for the untimely notice of claim. Consequently, this contention by plaintiff is similarly waived. Accordingly, the order is affirmed.”

A general challenge to a denial’s validity is insufficient.  The appellate courts require that this challenge be specific to the denials’ purported deficiency.