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Substantial compliance satisfied stipulation February 11, 2016

Capitol Discount Corp. v McFarlane, 2016 NY Slip Op 50140(U)(App. Term 2d Dept. 2016)
“Relieving a party from enforcement of a stipulation of settlement is appropriate upon a finding of substantial compliance with the stipulation of settlement (see Rockaway One Co. v Williams, 3 Misc 3d 25, 27

Verification received? I think not. February 11, 2016

EMC Health Prods., Inc. v National Liab. & Fire Ins. Co., 2016 NY Slip Op 50132(U)(App. Term 2d Dept, 2016)
“However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s employee, which affidavit was sufficient to give rise to a presumption that the

Unpreserved argument February 11, 2016

Natural Therapy Acupuncture, P.C. v Unitrin Auto & Home Ins. Co., 2016 NY Slip Op 50133(U)(App. Term 2d Dept. 2016)
This is really a good argument.  But, it fell outside the Rybak boilerplate as to why a declaratory judgment order is not preclusive as to his client.  On appeal, unnamed appell

VTL 313(2)(a) not complied with February 11, 2016

Advanced Med. Care, P.C. v Allstate Ins. Co., 2016 NY Slip Op 50130(U)(App. Term 2d Dept. 2016)
While defendant’s motion was based on its alleged termination of the insurance policy in question, defendant failed to sufficiently demonstrate, as a matter of law, that it had filed a copy of the

Trial de novo summary judgment motion appealed February 11, 2016

AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 2016 NY Slip Op 00916 (2d Dept. 2016)
The reason I appealed
“Contrary to the Supreme Court’s determination, the affidavit of the plaintiff’s branch manager, submitted by the plaintiff in support of its motion for summary judg

Later conflicting statements are “feigned” issues of fact February 3, 2016

Mirjani v DeVito, 2016 NY Slip Op 00448 (1st Dept. 2016)
“It is axiomatic that statements made by a party in an affidavit, a police report, or a deposition that are not denied by the party constitute an admission, and that later, conflicting statements containing a different version of the fa

Conditional order striking answer trumps cross-motion for summary judgment February 3, 2016

Cps 227 LLC v Brody, 2016 NY Slip Op 00446 (1st Dept. 2016)
“Supreme Court properly struck defendant’s answer based on its finding that he failed to comply with a conditional order requiring compliance with discovery demands, and his pattern of disobeying discovery orders (see Fish &amp

“reasonable hypothesis” standard under Ins Law 5105 February 3, 2016

Technology Ins. Co. v Countrywide Ins. Co., 2016 NY Slip Op 00058 (1st Dept. 2016)
“The arbitration award is supported by the “reasonable hypothesis,” drawn from petitioner’s unrefuted evidence and the reasonable inferences arising therefrom, that the vehicle insured by peti

How much is enough to satisfy 3101(d)? February 3, 2016

Conway v Elite Towing & Flatbedding Corp. 2016 NY Slip Op 00470 (2d Dept. 2016)
Generally in personal injury and no-fault litigation, the report of the exert is annexed to the 3101(d) disclosure, and this is sufficient.  Parenthetically, this is usually an IME report that the uniform rules req

Statute of limitations February 3, 2016

Contact Chiropractic, P.C. v New York City Tr. Auth., 2016 NY Slip Op 00325 (2d Dept. 2016)
“The Appellate Term correctly determined that an action by an injured claimant, or his or her assignee, to recover first-party no-fault benefits from a defendant who is self-insured, is subject to a si

  1. Commentatus says:

    No, there is no contract at issue with an MTA vehicle. However, the Second Department started out on the issue with a case against Elrac, where there was an actual contract between the vehicle’s driver and Elrac. Starting from that premise, they decided that every self-insurer is subject to the same standard. For the First Department, it was a Transit Authority case that was its first impression, and so they started out from the statutory premise.

  2. slick says:

    [Note: There’s a weird formatting problem so everything is appearing to me in caps for some reason]

    The prior appeal in the 1st Dept was poorly done. The Plaintiff conceded that no-fault was statutory for transit and did not realize the implications. The 2d Dept recognized there are tons of contractual relationships floating around a self-insured MTA vehicle. Therefore, the 2d Dept reached a different result.