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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Jury’s Findings Interpreting Insurance Contract Affirmed
Post 5105
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Madelaine Chocolate Novelties, Inc. (“Madelaine Chocolate”) appealed the district court’s judgment following a jury verdict in favor of Great Northern Insurance Company (“Great Northern”) concerning storm-surge damage caused by “Superstorm Sandy” to Madelaine Chocolate’s production facilities.
In Madelaine Chocolate Novelties, Inc., d.b.a. The Madelaine Chocolate Company v. Great Northern Insurance Company, No. 23-212, United States Court of Appeals, Second Circuit (June 20, 2025) affirmed the trial court ruling in favor of the insurer.
BACKGROUND
Great Northern refused to pay the full claim amount and paid Madelaine Chocolate only about $4 million. In disclaiming coverage, Great Northern invoked the Policy’s flood-exclusion provision, which excludes, in relevant part, “loss or damage caused by ....
Failure to Name a Party as an Additional Insured Defeats Claim
Post 5104
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Contract Interpretation is Based on the Clear and Unambiguous Language of the Policy
In Associated Industries Insurance Company, Inc. v. Sentinel Insurance Company, Ltd., No. 23-CV-10400 (MMG), United States District Court, S.D. New York (June 16, 2025) an insurance coverage dispute arising from a personal injury action in New York State Supreme Court.
The underlying action, Eduardo Molina v. Venchi 2, LLC, et al., concerned injuries allegedly resulting from a construction accident at premises owned by Central Area Equities Associates LLC (CAEA) and leased by Venchi 2 LLC with the USDC required to determine who was entitled to a defense from which insurer.
KEY POINTS
Parties Involved:
CAEA is insured by Associated Industries Insurance Company, Inc. ...
Exclusion Establishes that There is No Duty to Defend Off Site Injuries
Post 5103
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Attack by Vicious Dog Excluded
In Foremost Insurance Company, Grand Rapids, Michigan v. Michael B. Steele and Sarah Brown and Kevin Lee Price, Civil Action No. 3:24-CV-00684, United States District Court, M.D. Pennsylvania (June 16, 2025)
Foremost Insurance Company (“Foremost”) sued Michael B. Steele (“Steele”), Sarah Brown (“Brown”), and Kevin Lee Price (“Price”) (collectively, “Defendants”). Foremost sought declaratory relief in the form of a declaration that
1. it owes no insurance coverage to Steele and has no duty to defend or indemnify Steele in an underlying tort action and
2. defense counsel that Foremost has assigned to Steele in the underlying action may withdraw his appearance.
Presently before the Court are two ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
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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/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:
Health Care Fraud Trial Results in Murder for Hire of Witness
To Avoid Conviction for Insurance Fraud Defendants Murder Witness
In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...
Professional Health Care Services Exclusion Effective
Post 5073
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This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.
In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:
Insurance Coverage Dispute:
Travelers issued a Commercial General Liability ...
A Heads I Win, Tails You Lose Story
Post 5062
Posted on April 30, 2025 by Barry Zalma
"This is a Fictionalized True Crime Story of Insurance Fraud that explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help everyone to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime."
Immigrant Criminals Attempt to Profit From Insurance Fraud
People who commit insurance fraud as a profession do so because it is easy. It requires no capital investment. The risk is low and the profits are high. The ease with which large amounts of money can be made from insurance fraud removes whatever moral hesitation might stop the perpetrator from committing the crime.
The temptation to do everything outside the law was the downfall of the brothers Karamazov. The brothers had escaped prison in the old Soviet Union by immigrating to the United...
