What Is a Prima Facie Case in the Second Department? Appellate Deadlines in No-Fault Litigation

Appellate practice runs on deadlines. Briefing schedules, enlargement applications, and scheduling orders rarely make headlines, but they determine whether a party’s arguments are ever heard at all. This post looks at a short procedural order from the Appellate Division, Second Department, in a no-fault insurance appeal between a medical provider and GEICO — and uses it as a window into two recurring themes in this area of practice: how the Second Department manages its appellate calendar, and why practitioners were watching this particular appeal for guidance on the prima facie standard.

When this order came down, the answer to the question in the title — what is a prima facie case in the Second Department? — was simple: you will have to wait. The appeal, taken by permission from an order of the Appellate Term, was still being briefed.

The Order in Carothers v GEICO

Matter of Andrew Carothers, M.D., P.C. v Geico Indemnity Co., 2010 NY Slip Op 72075(U)(2d Dept. 2010)

Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a reply brief on an appeal, by permission, from an order of the Appellate Term of the Supreme Court, Second, Eleventh, and Thirteenth Judicial Districts, dated July 14, 2009.

ORDERED that the application is granted and the reply brief shall be served and filed on or before June 2, 2010.

ENTER:

How No-Fault Appeals Reach the Second Department

Most first-party no-fault benefits litigation in the downstate counties begins in the Civil Court of the City of New York or the District Courts. Appeals from those courts go first to the Appellate Term, not directly to the Appellate Division. To get a no-fault issue in front of the Appellate Division, Second Department, a party generally needs permission to take a further appeal from the Appellate Term’s order — which is exactly the posture of this case: an appeal “by permission” from an Appellate Term order.

That extra layer matters. Because so few no-fault cases ever reach the Appellate Division, the cases that do tend to carry outsized precedential weight for the thousands of provider suits pending in the lower courts. A single Second Department decision can reset the litigation playbook for both assignee medical providers and insurance carriers.

The rule invoked here, 22 NYCRR 670.8(d)(2), is part of the Second Department’s rules governing the time to serve and file briefs. When counsel cannot meet a briefing deadline, the proper course is an application to enlarge the time — not silence. As this order shows, the court routinely grants reasonable extension requests and simply fixes a new date certain. The court’s willingness to grant reasonable enlargements gives practitioners adequate time to prepare comprehensive arguments, which matters when prima facie cases can be lost on procedural missteps.

The Prima Facie Question in No-Fault Practice

Why would anyone care about a one-paragraph scheduling order? Because of what the underlying appeal represented. In no-fault first-party benefits litigation, the threshold battleground on nearly every summary judgment motion is the plaintiff’s prima facie case — the minimal evidentiary showing a medical provider must make before the burden shifts to the insurer to raise a triable issue on its defenses.

The procedural mechanics of prima facie cases are deceptively complex. A provider moving for summary judgment must come forward with admissible proof — typically through an affidavit laying a business-record foundation — establishing the elements of its claim, and when establishing a prima facie burden, practitioners must ensure all procedural deadlines are met to preserve their clients’ rights. Understanding how different appellate departments handle these matters is crucial for effective representation: the standards for establishing prima facie entitlement to summary judgment have differed between departments — what satisfies the First may not satisfy the Second.

That departmental divergence is precisely why appeals like this one get tracked. Until the Second Department speaks on a recurring evidentiary question, lower courts within the department are left to apply Appellate Term authority that may conflict with the approach taken across the river.

Why a Routine Scheduling Order Is Worth Reading

For practitioners, there are three practical points buried in this otherwise unremarkable order.

First, deadlines in the Appellate Division are real but manageable. If you need more time for a reply brief, make the application under the court’s rules and propose a date. The court here granted the request and set a firm deadline of June 2, 2010.

Second, the reply brief is worth fighting for. In a permission appeal raising an unsettled question, the reply is counsel’s only chance to answer the respondent’s framing of the issue. An attorney who lets the reply deadline lapse rather than seeking an enlargement gives up that opportunity for nothing.

Third, patience is part of appellate practice. Trial-level no-fault litigants frequently want to know what the controlling rule “is” — but where the controlling appeal is still being briefed, the honest answer is the one Jason Tenenbaum gave when this order was issued: you will have to wait.

Related Resources

• A formulation of a prima facie case — our cluster hub on the prima facie standard in no-fault litigation
• The firm’s Legal Encyclopedia — doctrine-by-doctrine coverage of New York no-fault and civil practice
• No-Fault Insurance Defense — our practice page
• Another in the never ending line of prima facie disasters
• Prima facie again…
• Another prima facie disaster in the second department