DEFENDANT CANT INTRODUCE POST NOT EBT OF ITS EXPERT
Bajaj v. Progressive Insurance Co.
Index No.: 000013/05
Queens Civil
Decided 11/20/06 Published in NY Law Journal 12/11/06
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Judge Raffaele held that the Defendant was not allowed to take a deposition of its expert post notice of trial.
LETTER FROM DEFENDANT DOESNT ESTABLISH PRIMA FACIE, BUT…
Impulse Chiropractic, P.C. v. Travelers Ins. Co.
2006 NYSlipOp 52371 (U)
Appellate Term, Second Department
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Plaintiff attempted to use a letter from Defendant which acknoledged receipt of claim to prove that the claim was received. The Court said “NO.” The court reasoned: Inasmuch as the letter does not set forth the amount sought by the claim form which defendant received, plaintiff did not establish it’s prima facie entitlement to summary judgement…”.
The decision seems to allow for a letter to be sufficient if the letter sets forth the amount of the claim.
DEFENANT’S DENIAL ESTABLISHES PLAINTIFF’S PRIMA FACIE
Delta Diagnostic Radiology, P.C. v. State Farm Mut. Auto . Ins. Co.
2006 NYSlipOp 52370 (U)
Appellate Division, Second Department
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“Herein, plaintiff established submission of its claim by annexing defendant’s denial of claim form…to its moving papers which states that defendant received said claim on June 30, 2003.”
Ultimately the court denied Plaintiff’s motion for Summary Judgment, finding that Defendant’s denial was sufficiently specific.
DENIAL CURES DEFECTS AND A LONG GOLIA DISSENT
Oleg Barshay, D.C., P.C. v. State Farm Ins. Co.
2006 NYSlipop 26496
Appellate Term, Second Department
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The Court held that where a Plaintiff fails to attach Defendant’s denial to it’s motion papers and the Defendant does, it cures whatever defects may exist in Plaintiff’s prima facie case. The Appellate Term relied on it’s ability to consider opposition papers as part of its ability to search the record pursuant to CPLR 3212 (b).
There is an unusually lengthy Golia dissent in which he explains why he (yet again) disagrees with the majority.