No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law

Archive for the ‘Hypo-technical defects’ Category

Marmer v IF USA Express, Inc., 2010 NY Slip Op 04151 (2d Dept. 2010)

“Further, the unsigned deposition transcript of the plaintiff, which the defendants submitted in support of their motion, did not constitute admissible evidence in light of the defendants’ failure to demonstrate that the transcript was forwarded to the plaintiff for her review pursuant to CPLR 3116(a)(see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos v Intown Assoc., 17 AD3d 564).”

This decision is wrong for a few reasons.  First, the cases that  the Appellate Division cites to involve non-party depositions.  Second, the law as it relates to party depositions, as the Second Department previously held in R.M. Newell Co., Inc. v. Rice, 236 AD2d 843 (2d Dept. 1997), states the following:

“The court properly considered Richard Newell’s deposition in support of defendants’ motions for summary judgment. The transcripts were certified as accurate by the court reporter, who sent them to the witness for his review and signature. Thus, pursuant to CPLR 3116(a), the deposition is usable as though signed. In any event, any statutory proscription against the use of a transcript as a “deposition” would not preclude its use as an admission of plaintiff’s controlling principal. CPLR 3212(b) states that “written admissions” may be submitted on a summary judgment motion. Further, rules of evidence provide for admissibility of admissions of an opposing party regardless of whether they are in the form of a deposition. Thus, irrespective of whether it qualified as a “deposition” under CPLR 3116, the transcript constituted proof in admissible form ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).”

Can an admission not be used against a plaintiff on a summary judgment motion due to the failure to comply with CPLR 3116?  Has this rule now changed?  Does this make sense?

Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 2010 NY Slip Op 20131 (App. Term 2d Dept. 2010)

“While the motion for summary judgment could simply be denied due to the existence of such an issue of fact, we are of the [*2]opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the signature upon plaintiff’s doctor’s “affirmation,” which will determine whether the “affirmation” was in admissible form (see also Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, whether defendant’s prima facie showing upon its cross motion was rebutted.”

Dave Gottlieb over at NFP commented on this one.  I will add that this case is now at odds with the recently decided case of Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 2010 NY Slip Op 50587(U)(App. Term 2d Dept. 2010). Will somebody on the 15th Floor at 141 Livingston Street make up their mind with how this issue should be resolved?

Please.  My work flow is being impacted!

In another care where I was the Respondent – I sometimes win these motions in the Civil Courts – Plaintiff appealed the finding of the Civil Court that I presented admissible evidence to demonstrate the supplies were not medically appropriate.  However, you will not get the full history of the case from reading the opinion.  I will give it to you here.

I moved for summary judgment on the basis that the supplies lacked medical necessity.  The propounded medical evidence consisted of an affirmed peer report and the documents that were relied upon.  A separate affirmation attesting to the fact that the peer review was the doctor’s executed document was not included.  This was inadvertent on my part.

Plaintiff opposed on the sole ground that the peer doctor’s signature was faxed or computer generated.

I replied and included an affirmation of the peer review doctor saying otherwise.

Civil Court granted me summary judgment based upon my tendering of admissible evidence to demonstrate that the supplies were not medically appropriate.

Plaintiff appealed.  His main contention on appeal was that the reply consisted of new evidence that should not have been considered.  My answering brief said that Plaintiff was wrong, and I included cases that were on point.

The Appellate Term affirmed the finding of the Civil Court, but for reasons that were different from those of the Civil Court.  The Appellate Term quoted a case that they decided after the submission of the briefs in the case, entitled “Eden Med., P.C. v Eveready Ins. Co.”.

Consequently, Plaintiff’s objections to the evidence set forth in the Reply was rendered academic since he failed to offer evidence stating that the peer reviewer’s signature on the underlying peer review was not holographic.

Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 2010 NY Slip Op 50587(U)(App. Term 2d Dept. 2010)

“However, in the instant case, plaintiff’s mere conclusory assertion that the peer review report contained a stamped or facsimile signature, without any indication as to why [*2]plaintiff held such belief, was insufficient to raise an issue of fact (see Eden Med., P.C. v Eveready Ins. Co., 26 Misc 3d 140[A], 2010 NY Slip Op 50265[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In view of the foregoing, we need not consider any issues raised in defendant’s
reply papers.”

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ
2008-2041 Q C.

Opinion withdrawn from publication in the Miscellaneous Reports at the direction of the court.

I think Gottlieb at NFP captured this case before it was assassinated.

In short, the Appellate Term proposed framed issue hearings on whether a signature was stamped, faxed or affixed in a non-holographic manner, in order to resolve this issue when raised in a summary judgment motion.  I suspect someone at OCA or some of the administrative judges placed a few phone calls to the panel of Justices on this case, and now this proposed remedy is void ab initio.  In my opinion, the holding of a framed issue hearing is not the worst the idea in the world.  Why don’t they have a designated JHO part, like they have in Supreme Kings for these types of hearings?

As the law stands, based upon the last published pronouncement of the Appellate Term, the objector must present some evidence to show that the affixed signature is stamped in order to defeat a motion on this ground.

_____________________________________________________________________________________________________

FURTHER RESEARCH REVEALS THAT THIS CASE HAS NOT BEEN REMOVED FROM WESTLAW (YET).  Here it is:

Amercure Acupuncture, P.C. v. Geico Ins. Co., 2010 N.Y. Slip Op. 20098 March 16, 2010 (Approx. 1 page)

2008-2041 Q C.Supreme Court of the State of New York Appellate Term: 2nd, 11th And 13th Judicial Districts

PRESENT: : RIOS, J.P., PESCE and STEINHARDT, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 3, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 3, 2008 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $475.20.
OPINION OF THE COURT

It looks as if an objector to a stamped signature or a computer generated signature needs to present some evidence that the signature is not holographic in order to raise an issue of fact.  Eden Med., P.C. v Eveready Ins. Co., 2010 NY Slip Op 50265(U)(App. Term 2d Dept. 2010).  Equally as important is that the defect may be cured in a reply.

“When an allegation that a peer review report contains a stamped signature of the peer reviewer is properly asserted, it generally cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment, because an issue of fact exists (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). However, in the instant case, plaintiff’s mere assertion that the peer review report contained a stamped facsimile signature, without any indication as to why it believes the signature is a stamped facsimile signature, is insufficient to raise an issue of fact. In any event, in [*2]reply, defendant submitted an affidavit from the peer reviewer in which she stated that she had “personally applied the signature on the peer review report.” In light of the foregoing, the order, insofar as appealed from, is affirmed.”

St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 2010 NY Slip Op 00668 (2d Dept. 2010)

“In support of its cross motion, the defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the accident in which the plaintiff’s assignor was injured was not an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199; see generally Alvarez v Prospect Hosp., 68 NY2d 320). In opposition to the defendant’s prima facie showing, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, the defense of lack of coverage is not precluded by the defendant’s failure to pay or deny the subject no-fault claim within the requisite 30-day period (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d at 199).”

Since i wondered what this case was about, I copied the relevant portions of the motion papers from the clerk’s office.  Here is what I found out:

This case involves the “my car was not there” defense.  There were numerous EUO’s that were done in this case and, without going into detail, the substance of the proof was sufficient to grant defendant summary judgment.

As to the form of the papers, the defendant annexed uncertified EUO transcripts and documentation without a business record foundation or other type of foundation.  Plaintiff in his opposition papers objected to the form of Defendant’s evidentiary presentation.  While I was unable to read the appellate briefs, I would imagine that Plaintiff’s admissibility argument was also presented in its Respondent’s brief.  Thus, it seems interesting that Defendant was able to get this decision reversed.

I will upload the relevant portions of the motion papers once my scanner behaves itself. The relevant portions of the motion papers in St Vincent v. Allstate are uploaded for your review.  Click on the previous hyperlink.

Chester Med. Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 52598(U)(App. Term 2d Dept. 2009)

“On November 21, 2006, plaintiff, a provider, commenced the instant action to recover assigned first-party no-fault benefits for a claim which was submitted to defendant on April 28, 2000. Defendant moved to dismiss the complaint on the ground that it was time-barred by the six-year statute of limitations. Plaintiff opposed defendant’s motion arguing that since this was defendant’s second pre-answer motion to dismiss, it was procedurally defective. The Civil Court granted defendant’s motion and dismissed the complaint. The instant appeal by plaintiff ensued.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) may be made at any time before service of the responsive pleading is required but no more than one such motion shall be permitted (see CPLR 3211 [e]). Where, as here, the original motion to dismiss the complaint pursuant to CPLR 3211 (a) is not decided on the merits, a subsequent motion to dismiss pursuant to CPLR 3211 (a) does not violate the single motion rule set forth in CPLR 3211 (e)”

By the way, I was Respondent on this case.

I have an observation here that I want to share with those who read this – which I think consists of me, myself and I. The decisions in the realm of no-fault have been getting quite redundant. We used to always wait for the next big pronouncement from an appellate court, or even an observation from a lower court. Now, we just look to see when the next breaking or shattering of the status quo will occur.

With the above introduction in mind, now to the cases.

A.M. Med., P.C. v State Farm Mut. Ins. Co.
2008 NY Slip Op 28487 (App. Term 2d Dept. 2008)

Failure to properly caption – you better reject that paper within 2-days or you have waived the

Plaintiff argues that the absence of a caption setting forth the name of the court, the venue [*2]and the index number in the 90-day demand rendered it a nullity, as it was not in compliance with CPLR 2101 (c). However, the demand set forth the name of the case, including the name of the assignor, as well as the date of the loss. Consequently, in our opinion, the omissions were merely defects in form to which plaintiff’s counsel could have objected by returning the demand to defendant within two days of its receipt, specifying the nature of the defect (CPLR 2101 [f]). Plaintiff’s failure to do so waived any objection to the defect (see Deygoo v Eastern Abstract Corp., 204 AD2d 596 [1994]). right to challenge that defect.

Psychmetrics Med., P.C. v Travelers Ins. Co.
2008 NYSlipOp 52466(U)(App. Term 2d Dept. 2008)

This is another notice to admit case. Nothing special, right? Well, this is the first citing of Art of Healing Medicine, P.C. v Traveler’s Home & Mar. Ins. Co., ___ AD3d ___, 2008 NY Slip Op 07846 [2d Dept 2008], the Appellate Division’s affirmance of the Dan Medical “business record foundation” cases in order to establish a prima facie case…. Exciting, right?

My last words of the day…

I love the commentary from the Appellate Term on CPLR 2101. Realistically, how many law practices can realistically reject a non-captioned filing within two days of receipt? A better question – how many law practices can reject a “hidden” affidavit that is not captioned within a properly captioned motion within two days of its receipt? I know I cannot – and my practice pales in comparison to that of the larger firms out there – e.g., Baker, Sanders (among others)…

And then there is Art of Healing – vindication to those who have pushed through Dan Medical and its progeny…