Pre-answer motion does not circumvent right to effectuate a 3217 discontinuance June 17, 2017

Harris v Ward Greenberg Heller & Reidy LLP, 2017 NY Slip Op 04970 (4th Dept. 2017)

“We conclude that the notices of discontinuance were not untimely because a motion to dismiss pursuant to CPLR 3211 is not a “responsive pleading” for purposes of CPLR 3217 (a) (1). A motion pursuant to CPLR 3211 does not fall within the meaning of a “pleading” as defined by CPLR 3011. Rather, a “motion” is defined in the CPLR as “an application for an order” (CPLR 2211). Indeed, the terms “responsive pleading” and “motion to dismiss pursuant to CPLR 3211” are not used interchangeably in the CPLR but, rather, are treated as distinct, separate items. For instance, CPLR 3211 (d) provides that, under certain circumstances, “the court may deny the [CPLR 3211] motion, allowing the moving party to assert the objection in his responsive pleading” ([emphasis added]). Likewise, CPLR 3211 (e) provides that, “[a]t any time before service of the responsive pleading is required, a party may move on one or more grounds set forth in [CPLR 3211 (a)].” It is clear from the language used throughout the CPLR that the Legislature did not intend a CPLR 3211 motion to be considered a “responsive pleading.”

So many practitioners just do not understand CPLR 3217.   I have seen where a party, seeing life was not going his way, wrote a letter to the judge that the matter is hereby discontinued, the motion is moot etc.  This cavalier attitude permeates this profession.

New fee schedule for the New Jersey problem thankfully is coming soon June 11, 2017

Amendments for services rendered  or of NY

(Page 30 of the pdf)

The application of the New Jersey fee schedule has been a complete scourge on the no-fault system.  As I have said repeatedly, when a problem becomes redundant and problematic, DFS will after a 3-4 year period address the issue through regulatory amendment.  $20,000 arthroscopes in New Jersey fit this definition.  It appears this will take in effect in November.

In essence, a surgeon can bill can no greater than Region IV or the New Jersey ASC.  A  facility will only be able to bill the lower of the most expensive EAPG rate (used to be PAS) or the New Jersey ASC for services.  Exceptions are made for emergency care and a person who resides in New Jersey – not bused from Bronx to Saddlebrook, Jersey City or Englewood Cliffs by Square Circle Synagogue Transportation (the old timers will get this reference).

This regulation of course deals with all services rendered outside of NY; I stress New Jersey because that was the impetus behind the regulation.

FYI – The newer issue we are now seeing is the application of the 20999 BR surgery code since surgeons do not want to be subject to the 50% multiple procedure reduction or the true RVUs of the procedure that is billed.  This can triple a surgeon’s bill.  One problems solved, one problem created.

Minor impact and expert report sufficient to prove lack of causation June 10, 2017

Frank v Gengler, 2017 NY Slip Op 04423 (2d Dept. 2017)


“Here, the Supreme Court erred in determining that the jury verdict in favor of the defendant was not supported by legally sufficient evidence. The evidence presented at trial included photographic evidence and witness testimony indicating the relatively minor nature of the motor vehicle accident, and expert testimony presented by the defendant indicating that the plaintiff’s alleged injuries were solely the result of degenerative processes and were not caused by traumatic injury. Contrary to the court’s conclusion, on the basis of the evidence presented at trial, there was a valid line of reasoning by which the jury could conclude that the motor vehicle accident was not a substantial factor in causing the injuries allegedly sustained by the plaintiff (see Wilson v Philie, 107 AD3d 700, 701; Rubino v Scherrer, 68 AD3d 1090, 1092; cf. Jilani v Palmer, 83 AD3d 786, 787; see generally Imbrey v Prudential Ins. Co., 286 NY 434, 440). Accordingly, the court, upon reargument, should have adhered to its prior denial of that branch of the plaintiff’ motion which was pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendant and for judgment as a matter of law.”

Personally, I think this case has huge repercussions.  Never have I seen a court lay out such a simple road-map for getting to a determination of lack of causation between the accident and injury.  It is the same thought process, regardless of whether we are litigating first-party lack of causation of third-party causation,


Special Referee cannot determine BP issues June 10, 2017

Flores v New York City Hous. Auth.,

“Since a bill of particulars is not a disclosure device but a means of amplifying a pleading (see id. at 335-336), the present dispute over the contents of the plaintiff’s bill of particulars is not “part of any disclosure procedure” (CPLR 3104[a]) that CPLR 3104 authorizes a referee to supervise”

This one is interesting.

Failure to file the affidavit of service not jurisdictional June 10, 2017

Buist v Bromley Co., LLC, 2017 NY Slip Op 04417 (2d Dept. 2017)

” The failure to file proof of service is a procedural irregularity, not a jurisdictional defect, that may be cured by motion or sua sponte by the court in its discretion'” (Matter of Meighan v Ponte, 144 AD3d 917, 918, quoting Khan v Hernandez, 122 AD3d 802, 803; see CPLR 2001, 2004). Here, there is no reason to believe that the defendants did not properly and timely serve Minard in compliance with the so-ordered stipulation dated December 8, 2014. Moreover, the defendants promptly requested permission to correct the irregularity in filing the affidavit of service after learning that it was filed in the wrong office, and there was no allegation or indication of prejudice to the plaintiff as a result of the requested correction. Under these circumstances, the Supreme Court improvidently exercised its discretion in denying the defendants’ application for an extension of time to file the affidavit of service in the Clerk’s office, and thereupon denying their motion for summary judgment on the ground that they failed to file proof of service in that office

The reasons some Brooklyn Judges will come up with to avoid deciding a motion