EUO/EBT/ Now I know how much Mr. Moshe makes!July 26, 2018

Moshe v Country-Wide Ins. Co.. 2018 NY Slip Op 28220 (Dis. Ct. Nassau Co. 2018)

(1) “Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of monies claimed due as loss of earning for Moshe’s appearance at a November 10, 2015 examination under oath (EUO or deposition) taken in the context of first-party no-fault insurance claim(s) submitted by Excel Surgery Center, LLC (Excel) of which Moshe is owner.”

(2) “In support thereof, and as previously requested by Country-Wide’s counsel (Complaint at ¶ 22), Excel’s counsel provided a redacted copy of Moshe’s 2014 joint federal tax return which showed $320,000.00 in “Wages, salaries tips, etc.” and an additional $2,604,942.00 in “Rental real estate, royalties, partnerships, S corporations, trusts, etc.” (Complaint at ¶ 24; defendant’s Exhibit D [tax return]”

(3) “The within action was subsequently brought by plaintiffs seeking recovery of the difference between Moshe’s demand ($12,186.14) and Country-Wide’s payment ($1,280.00). The issue now before the court is whether plaintiff Moshe should be compelled to appear for a “second” deposition, this time addressing how he calculates the $10,906.14, as the unpaid balance still due him for his loss of earnings incurred by his appearance at first deposition.

() Plaintiffs oppose defendant’s current notice to again depose plaintiff Moshe contending that the first deposition should have included the “loss of earnings” issue. In effect, plaintiffs would have this court find that defendant’s failure to address the loss of earnings issue in the context of the first-party no-fault claim constitutes a waiver of defendant’s right to now depose him in the context of this action.

(5) “Nevertheless, the within plenary action remains an adjunct of the prior claim for first-party no-fault benefits. There is no dispute that Moshe is entitled to be paid for the financial impact of appearing at the first deposition. To now permit a second deposition to be held over a dispute regarding the amount of that impact has the practical effect of reducing by roughly half the recovery intended to be protected by 22 NYCRR § 65-3.5[e]. This is so regardless of which party ultimately prevails in fixing the amount of Moshe’s loss of earnings for his appearance at the first deposition.”

(6) “Under the circumstances, the consequences of a second deposition seem inherently unreasonable given the availability of a middle course designed to protect defendant’s right to discovery in the context of this plenary action while recognizing that the action has as its core a claim of financial harm caused by deposing plaintiff.”

Look, this decision is wrong.  When you bring a plenary action, you are subjected to a deposition.  Even the First Department gave the “cf” treatment to Ralph Medical v. Mercury in Acupuncture Approach..  What is more concerning this:  Why would you bring a plenary case that would expose Mr. Moshe’s tax returns?  My eyes are rolling at this one.


5 Responses

  1. slick says:

    There’s nothing wrong with this decision. CW wants to ask questions which he already answered. How is that “material and necessary” to the action? Even if there’s a bit of an inconvenience, Yan is fighting the good fight on this one.

    • jtlawadmin says:

      Please. It is a baseless argument, and I think Plaintiff knows better. I have my own lawsuits with CW but I would have sat my client client for the EBT and then tried the case. You know Mr. Moshe resides out of state? The CPLR would allow an EBT as prima facie evidence at trial. Heck, I would have done a video deposition and tried my case on CW’s deposition dollar.

  2. Nathan Shapiro says:

    It’s not so clear the court is even analyzing this properly. The selective quotation of the regulation hides the issue. According to the court, “There is no dispute that pursuant to the relevant provisions governing EUO’s involving first-party no-fault insurance claim(s) the deponent is entitled to ‘loss of earning’ caused by attendance at the EUO.” that’s not what the regulation says, the regulation says nothing about deponents. It says that “the applicant will be reimbursed for any loss of earnings.” The applicant is Excel, not Moshe. Excel must show it lost earnings because Moshe absented himself from work that day and will be reimbursed for that. (His personal earnings might be relevant to that question, but not clear that they are). Moshe lacks standing to try to get paid.

  3. Nathan Shapiro says:

    A follow-up decision on the motions for summary judgment was posted today. Hope you post on it JT. http://NYCOURTS.GOV/REPORTER/3DSERIES/2019/2019_29138.HTM

    The Court’s reasoning denying summary judgment gets closer to the correct answer: that the actual loss of earnings must be measured by how much money was lost because Moshe appeared instead of working. Still, the court seems to be deciding the issue based upon Moshe’s losses, not Excel’s losses.

    But the complexity of the calculation recognized by the court cuts heavily against its prior decision to deny an EBT in this case. You don’t think that deposing Moshe about his sources of income, his responsibilities, his ability to alter his schedule to accomodate the EUO, etc. would produce material and relevant information in deciding this case?

    • jtlawadmin says:

      I will this weekend. I have a lot to say about Moshe. I think countywide really blew it. My reasons will be disclosed. I also think plaintiff should have punted or placed this in a different court. If I was Yan Moshe, I would be beyond pissed right now. God help anyone, let alone my attorneys, who put my taxes out for the world to see. I am not going to comment further on this point. I am going to assume Moshe was aware of the risks he ran when he gave his attorneys permission to file this lawsuit. In othe words, I am assuming he gave informed consent before this was commenced.

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