Big Apple Ortho Medical Supply, Inc. v. Allstate Ins. Co., 3141/2011, NYLJ 1202756440119, at *1 (Civ., BX, Decided April 5, 2016)
Attorneys for insurance carrier sought to modify judgment pursuant to CPLR 5019 and 5240, normally used to correct clerical errors, to assert the argument of policy cancellation, which apparently was not raised although there was an opportunity to do so. The Court stated as follows:
Defendant’s reliance on CPLR §5019(a) is misplaced. There has been no demonstration of a clerical error being made in the judgment, rather it appears that defendant failed to raise a substantive defense at trial that cannot now be corrected via CPLR §5019(a). Further, defendant’s citation to St. Barnabas Hosp. v. Countrywide Ins. Co., 79 AD3d 732, 913 NYS2d 695 [2010], is unpersuasive. The Appellate Division, Second Department, makes clear that the applicability of CPLR §5019(a) to defendant’s motion is not addressed solely because plaintiff failed to raise such an objection. Contrarily, in the present case, plaintiff appropriately opposes the application of CPLR §5019(a) (see Misicki v. Caradonna, 12 NY3d 511, 519, 882 NYS2d 375, 909 NE2d 1213 [2009]; Martin v. City of Cohoes, 37 NY2d 162, 165-166, 371 NYS2d 687, 332 NE2d 867 [1975]). As defendant has moved for relief not available under CPLR §5019(a), the motion is denied.
The Court distinguished Hospital for Joint Diseases:
Defendant also cites Hospital for Joint Diseases v. Hertz Corp., 22 AD3d 724, 803 NYS2d 670 [2005]. In Hospital for Joint Diseases, the court allowed defendant to modify the amount of the judgment, which exceeded the policy, finding that the defendant had not been given a full and fair opportunity to raise their argument that the policy had been exhausted, as they solely litigated whether the subject injury and treatment were causally related to motor vehicle accident. The present set of facts is distinguishable. The parties agreed to proceed to trial on April 11, 2014, and the court found that defendant had failed to meet its burden as to its affirmative defense of medical necessity. Defendant was afforded a full and fair opportunity to raise the defense of the exhaustion of the policy. The issue of partial exhaustion of the policy was raised for the first time via the present motion, even though defendant’s own exhibits show that at the time of trial the policy had already been exhausted. Defendant does not provide any reasonable justification for its failure to raise the issue of policy exhaustion earlier.