The Rogak Report: 27 Nov 2009 ** No Fault - EUO No-Show - Summary Judgment **
PRE-ANSWER MOTION TO DISMISS MAY BE APPROPRIATE WHEN DEFENSE TO NO-FAULT CLAIM IS EUO NO-SHOW
Dynamic Med. Imaging, P.C. a/a/o Veronia A. Thompson v State Farm Mut. Auto. Ins. Co. 2009 NY Slip Op 29478 Decided on November 24, 2009 District Court Of Nassau County, Second District Ciaffa, J. Edited by Lawrence N. Rogak
In this no-fault suit, State Farm moved, pursuant to CPLR 3211, for dismissal prior to serving an Answer to the Complaint. The basis for the motion was that the assignor failed to appear for examination under oath. The question before the Court was whether a 3211 pre-answer Motion to Dismiss was an appropriate tool, or whether instead a post-answer Motion for summary judgment under CPLR 3212 was the proper procedure.
"The moving papers submitted by defendant make a prima facie showing of its entitlement to dismissal through proof, in admissible form, that plaintiff failed to appear for a properly noticed EUO. Such failure to appear for the EUO breached a condition precedent to plaintiff's right payment of the subject claims, and by itself provides a complete defense to the instant action," held the Court.
"The issues presented on this motion are substantially identical to those considered in prior decisions of Judge Knobel and myself. See Dynamic Med. Imaging v. State Farm, Index no. 9819/08, decision dated June 12, 2009 (Knobel, J.); Dynamic Med. Imaging v. State Farm, Index no. 10102/09, decision dated July 14, 2009 (Ciaffa, J.). Absent a showing that the facts at bar are materially different, the Court adheres to the prior rulings, and dismisses the complaint. See, e.g. Dynamic Med. Imaging v. State Farm, Index No. 17077/09, decision dated August 14, 2009 (Ciaffa, J.); Dynamic Med. Imaging v. State Farm, Index No. 16708/09, decision dated September 28, 2009 (Ciaffa, J.); Dynamic Med. Imaging v. State Farm, Index No. 20920/09, decision dated October 7, 2009 (Ciaffa, J.); Dynamic Med. Imaging v. State Farm, Index No. 31270/09, decision dated October 21, 2009 (Ciaffa, J.)."
"The only other issue worth addressing is the propriety of using CPLR 3211 (instead of CPLR 3212) as the vehicle for dismissal. Subject to further guidance from our appellate courts, I believe that CPLR 3211(a)(7), read together with CPLR 3211(a)(1), allows a Court to consider a combination of documents and affidavits when determining whether the defendant is entitled to judgment upon a pre-answer motion to dismiss. Biondi v. Beekman Hill House Apartment Corp., 257 AD2d 76 (1st Dept 1999), affd. 94 NY2d 659 (2000), is instructive on this point. In that case, the defendant moved to dismiss a civil action based on "extrinsic evidence" consisting of "affirmations and exhibits." 257 AD2d at 80-1. The IAS Justice denied the motion, finding from the "four corners" of the complaint that it alleged a cognizable cause of action. Id. at 80. The Appellate Division reversed. Id. "Where extensive evidence is used" to support a motion to dismiss, the Court explained, the issue for determination is "whether the proponent of the pleading has a cause of action, not whether he has stated one." Id. at 81, quoting Guggenheim v. Ginzberg, 43 NY2d 268, 275 (1977 ). Accordingly, in cases where the complaint's validity has "been negated beyond substantial question by the affidavit and evidentiary matter submitted" and it is clear that plaintiff "does not have a [viable] cause of action," dismissal under CPLR 3211 is warranted."
"Admittedly, other caselaw pronouncements construing CPLR 3211(a) (7) paint a more confusing and contradictory picture. See Siegel, Practice Commentaries to McKinney's CPLR, at C3211:25. The majority opinion in Rovello v. Orofino Realty Co., 40 NY2d 633 (1976), read broadly, appears to limit the Court's authority to grant dismissal, upon affidavits, without converting the motion from a motion to dismiss into a motion for summary judgment. However, the Court of Appeals' more recent decisions recognize that dismissal upon a 3211 motion may be granted where affidavits "established conclusively" that the plaintiff has no valid claim or cause of action to pursue. See Lawrence v. Miller, 11 NY3d 588, 595 (2008); accord Godfrey v. Spano, NY3d , 2009 NY Slip Op 08474 at *7 (decision dated November 19, 2009)."
"Accordingly, under the logic of the more recent cases, where a "conclusive" case for dismissal is made out, the outcome of a given motion for judgment should not depend upon the largely technical distinction between a pre-answer (§3211) and post-answer (§3212) motion. Either way, if the defendant can make a conclusive showing of entitlement to judgment as a matter of law, it ought to be able to obtain an order dismissing the complaint."
"Using CPLR 3211(a)(7) to achieve such a result is hardly unprecedented. Indeed, defendant cites numerous decisions from lower court judges throughout the New York metropolitan area where similar relief was sought, and successfully obtained. Moreover, CPLR §104 provides that the Civil Practice Law and Rules of this state should be construed to secure 'the just, speedy and inexpensive determination of every civil judicial proceeding,' and toward that end, I see no overriding public policy reason why the procedures chosen by defendant cannot be used to obtain a speedy determination of an otherwise compelling, proveable defense, of an EUO default."
"In sum, with all due respect for judicial determinations that may have read CPLR 3211 more narrowly, e.g. Dynamic Medical Imaging, PC v. State Farm Ins. Co., index
no. 10100/09, decision dated October 1, 2009 (Dist Ct Nassau Co., Hirsh, J.), I have concluded, after careful consideration, that CPLR 3211 is an appropriate vehicle for obtaining a prompt judicial ruling respecting a defense of an EUO default. For all these reasons, the subject complaint is dismissed."
Comment: Of course, such a Motion must be accompanied by the requisite EUO scheduling letters, proof of mailing, etc.