Appeal Lost Due to Failure to Provide an Adequate Record
Post 4810
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In an action to recover damages for personal injuries, the defendant Myrtle 6, LLC, appealed from an order of the Supreme Court, Kings County (Lawrence S. Knipel, J.). The order, insofar as appealed from, denied those branches of the motion of the defendant Myrtle 6, LLC to stay the trial ,to vacate the note of issue, and to compel discovery.
The Appellate Court, in Jay Bing v. Myrtle 6, LLC, 2024 NY Slip Op 02516, No. 2022-03586, Index No. 519239/16, Supreme Court of New York, Second Department (May 8, 2024) resolved the appeal after finding the record on appeal to be inadequate.
FACTS
The plaintiff commenced this action against the defendant Myrtle 6, LLC and another defendant to recover damages for personal injuries. The defendant moved to stay the action, vacate the note of issue, and compel discovery. The Supreme Court issued a stay of trial and granted leave for the defendant to amend its answer and allege various fraud defenses.
The defendant alleged that there was a related criminal case pending against the plaintiff’s previous attorney in connection to an insurance fraud scheme. Although the defendant’s affirmation in support of its motion stated that the details of the fraud scheme were outlined in prior motions with exhibits, none of the prior motions or exhibits were included in the record on appeal.
In an order after oral arguments the Supreme Court inter alia, denied those branches of the defendant’s motion which were to stay the trial, to vacate the note of issue, and to compel discovery.
ANALYSIS
It is the obligation of the person seeking to appeal a judgment, the appellant, to assemble a proper record on appeal. Generally speaking, a
n appellant’s record on appeal must contain all of the relevant papers before the Supreme Court. In New York and every other state, appeals that are not based upon complete and proper records must be dismissed.
The appellate court observed that the record provided to it by the appellant was inadequate for meaningful appellate review. The appellant failed to include all relevant documents that were before the Supreme Court (the trial court). The record failed to include the exhibits allegedly demonstrating that the plaintiff’s former counsel was involved in a fraud scheme. Since these omissions have rendered meaningful appellate review of the court’s order virtually impossible, the appeal must be dismissed.
ZALMA OPINION
When a plaintiff’s lawyer is under arrest for insurance fraud the right of an injured party to establish a claim against the defendant becomes problematic. The appeal of the order could have been effective but failed because the record on appeal was inadequate. The Appellant is not without a remedy, the defendants can sue their lawyers for malpractice.
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ZIFL Volume 30, Number 2
THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL
Post number 5260
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Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ This issue contains the following articles about insurance fraud:
Read the full 19 page issue of ZIFL at https://zalma.com/blog/wp-content/uploads/2026/01/ZIFL-01-15-2026.pdf.
The Contents of the January 15, 2026 Issue of ZIFL Includes:
Use of the Examination Under Oath to Defeat Fraud
The insurance Examination Under Oath (“EUO”) is a condition precedent to indemnity under a first party property insurance policy that allows an insurer ...
ERISA Life Policy Requires Active Employment to Order Increase in Benefits
Post 5259
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In Katherine Crow Albert Guidry, Individually And On Behalf Of The Estate Of Jason Paul Guidry v. Metropolitan Life Insurance Company, et al, Civil Action No. 25-18-SDD-RLB, United States District Court, M.D. Louisiana (January 7, 2026) Guidry brought suit to recover life insurance proceeds she alleges were wrongfully withheld following her husband’s death on January 9, 2024.
FACTUAL BACKGROUND
Jason Guidry was employed by Waste Management, which provided life insurance coverage through Metropolitan Life Insurance Company (“MetLife”). Plaintiff contends that after Jason’s death, the defendants (MetLife, Waste Management, and Life Insurance Company of North America (“LINA”)) engaged in conduct intended to confuse and ultimately deny her entitlement to...
Failure to Respond to Motion to Dismiss is Agreement to the Motion
Post 5259
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In Mercury Casualty Company v. Haiyan Xu, et al., No. 2:23-CV-2082 JCM (EJY), United States District Court, D. Nevada (January 6, 2026) Plaintiff Mercury Casualty Company (“plaintiff”) moved to dismiss. Defendant Haiyan Xu and Victoria Harbor Investments, LLC (collectively, “defendants”) did not respond.
This case revolves around an insurance coverage dispute when the parties could not be privately resolved, litigation was initiated in the Eighth Judicial District Court of Nevada. Plaintiff subsequently filed for a declaratory judgment in this court.
On or about April 15, 2025, the state court action was dismissed with prejudice pursuant to a stipulation following mediation. Plaintiff states that the state court dismissal renders its ...
Court Must Follow Judicial Precedent
Post 5252
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Insurance Policy Interpretation Requires Application of the Judicial Construction Doctrine
In Montrose Chemical Corporation Of California v. The Superior Court Of Los Angeles County, Canadian Universal Insurance Company, Inc., et al., B335073, Court of Appeal, 337 Cal.Rptr.3d 222 (9/30/2025) the Court of Appeal refused to allow extrinsic evidence to interpret the word “sudden” in qualified pollution exclusions (QPEs) as including gradual but unexpected pollution. The court held that, under controlling California appellate precedent, the term “sudden” in these standard-form exclusions unambiguously includes a temporal element (abruptness) and cannot reasonably be construed to mean ...
Lack of Jurisdiction Defeats Suit for Defamation
Post 5250
Posted on December 29, 2025 by Barry Zalma
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He Who Represents Himself in a Lawsuit has a Fool for a Client
In Pankaj Merchia v. United Healthcare Services, Inc., Civil Action No. 24-2700 (RC), United States District Court, District of Columbia (December 22, 2025)
FACTUAL BACKGROUND
Parties & Claims:
The plaintiff, Pankaj Merchia, is a physician, scientist, engineer, and entrepreneur, proceeding pro se. Merchia sued United Healthcare Services, Inc., a Minnesota-based medical insurance company, for defamation and related claims. The core allegation is that United Healthcare falsely accused Merchia of healthcare fraud, which led to his indictment and arrest in Massachusetts, causing reputational and business harm in the District of Columbia and nationwide.
Underlying Events:
The alleged defamation occurred when United ...
Zalma’s Insurance Fraud Letter
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ZIFL Volume 29, Issue 24
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Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/
Zalma’s Insurance Fraud Letter
Merry Christmas & Happy Hannukah
Read the following Articles from the December 15, 2025 issue:
Read the full 19 page issue of ZIFL at ...
