Law Office failure established through associate attorney deception November 28, 2016

Scholem v Acadia Realty L.P., 2016 NY Slip Op 07943 (2d Dept. 2016)

“Here, in opposition to the plaintiff’s motion, inter alia, to enforce the conditional order and strike the defendant’s answer, the defendant submitted affidavits which, taken together, set forth a detailed and credible explanation for the failure to produce the witnesses for deposition (see Blake v United States of Am., 109 AD3d 504, 505), based on acts of misconduct and deception on the part of the associate attorney handling the matter for the defendant’s attorney”

The famous line before the associate attorney leaves: “Don’t worry, everything is taken care of.”  Well – reality is a bummer sometimes,

Serious injury, causation and the ability to recover November 28, 2016

Hojun Hwang v Doe, 2016 NY Slip Op 07610 (1st Dept. 2016)

(1) “Defendant made a prima facie showing that plaintiff did not sustain a serious injury to his right knee, by submitting the report of their orthopedic surgeon who found full range of motion, and opined, upon review of intraoperative photographs, that plaintiff’s knee surgery was not causally related to the accident (see Hernandez v Cespedes, 141 AD3d 483 [1st Dept 2016]; Acosta v Zulu Servs., Inc., 129 AD3d 640 [1st Dept 2015]).

(2) “Plaintiff’s failure to raise an issue of fact as to whether his right knee condition was causally related to the accident means that he cannot recover for any right knee injury, regardless of whether he meets the serious injury threshold with respect to his cervical and lumbar spine claims (see Rubin v SMS Taxi Corp., 71 AD3d 548, 549 [1st Dept 2010]).”

This is an example of the causation defense at its worst.  Plaintiff in his BP/Supp BP appears to have pleaded neck, back and right knee with surgery.  The value of the case would rest with the right knee injury.  The court in the SJ motion dismissed threshold on the right knee injury based upon lack of causation.  The neck and back remain.  The net effect because the Court found lack of causation (as opposed to lack of serious injury) is that the knee injury cannot be considered at all if the neck and back surpass threshold.  The decision makes sense.

The causation piece fits within the more contemporary manner of trying an extremity of surgery where hevay reliance is placed on the operative photos and mininal reliance is palced on the MRI filns.

A discussion on CPLR 3101(d) November 28, 2016

Tate-Mitros v MTA N.Y. City Tr., 2016 NY Slip Op 07394 (1st Dept. 2016)

There seem to be a few attorneys who do not understand the minimal extent of disclosure and the timing issues behind CPLR 3101(d).  This case is a prototypical example of when the parties convince a judge that 3101(d) is more demanding than that it is.  The result of this argument seems to usually result in a new trial.

(1) “We find that Dr. Kurtz’s CPLR 3101(d)(1) disclosure notice was legally sufficient; it provided plaintiff with notice that the doctor would question whether a bus would have caused the injuries sustained by plaintiff. It is improper for a party to request the facts and opinions upon which another party’s expert is expected to testify (see Krygier v Airweld, Inc., 176 AD2d 700, 701 [2d Dept 1991]; see also Weininger v Hagedorn & Co., 203 AD2d 208, 209 [1st Dept 1994]; Conway v Elite Towing & Flatbedding Corp., 135 AD3d 893, 894 [2d Dept 2016] [“no requirement that (an) expert set forth the specific facts and opinions upon which he or she is expected to testify, . . . only the substance”]).”

(2) “However, a party should not be precluded from presenting expert testimony merely because of noncompliance with CPLR 3101(d)(1)(i), unless there is evidence of a willful failure to disclose and a showing of prejudice by the opposing party”

Dismissal for failure to comply with one discovery order November 28, 2016

Renelique v Lancer Ins. Co., 2016 NY Slip Op 51596(U)(App. Term 2d Dept. 2016)

(1) By order entered March 31, 2014, the Civil Court granted defendant’s unopposed motion and directed plaintiff to “provide discovery responses to outstanding discovery demands within 60 days.”

(2) When plaintiff’s time to respond had passed, defendant moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the March 31, 2014 order. On September 9, 2014, plaintiff served its opposition to the motion along with written responses to defendant’s discovery demands. Plaintiff appeals from an order of the Civil Court, entered December 11, 2014, which, among other things, granted defendant’s motion and dismissed the complaint.

(3) “Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the case at bar, that plaintiff’s conduct was willful and contumacious can be inferred from its refusal to adequately comply with discovery requests, even after being directed to do so by court order, as well as from the absence of a reasonable excuse for its failure to comply”

The Plaintiff missed one order without any conditional language.  Civil Court dismissed the complaint -which they wouldn’t even do in Federal Court – and the Appellate Term affirmed despite belated compliance.

Unless I am missing something, the Appellate Term plainly got this wrong.

Here is PI case from the Second Department (2 weeks subsequent) that required more than one ignored order:

Bruno v Flip Cab Corp., 2016 NY Slip Op 07617 (2d Dept. 2016)

“Here, Livoti twice failed to appear for depositions in violation of two court orders and never responded to a demand for a bill of particulars. Livoti’s failures to comply with court-ordered discovery coupled with her failure to provide any excuse therefor supports an inference that her conduct was willful and contumacious”


Fraudulent procurement has now been changed into a material misrepresentation defense November 28, 2016

Renelique v National Liab. & Fire Ins. Co., 2016 NY Slip Op 51615(U)(App. Term 2d Dept. 2016)

It appears that Oleg Rybak has gotten his point across that the “fraudulent procurement” defense is really a material misrepresentation defense in disguise.  This defense has to fit within the parameters of Ins Law 3105 and be supported with proof from a underwriting manual.

“Defendant’s cross motion was based upon the ground that plaintiff’s assignor had procured the insurance policy in question by making a material misrepresentation as to his place of residence. As plaintiff argues, defendant failed to establish as a matter of law that the misrepresentation by plaintiff’s assignor was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2011]). Consequently, defendant’s cross motion should have been denied.”