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Certified transcripts May 8, 2022

July, P.T., P.C. v Metropolitan Group Prop. & Cas. Ins., 2022 NY Slip Op 50302(U)(App, Term 2d Dept. 2022)

“Contrary to plaintiff’s sole contention on appeal, the affidavit by defendant’s special investigator who was scheduled to conduct the EUOs, accompanied by certified transcripts of the EUOs, established that the assignor had failed to appear at either of the EUOs”

As I now understand the law, the certified transcript is useless unless a credibility challenge exists as to the affiant’s personal knowledge of what occurred?.

NF2 v. NF3 v. no attempt to find the Assignor May 8, 2022

AB Quality Health Supply Corp. v Nationwide Ins., 2022 NY Slip Op 50299(U)(App. Term 2d Dept. 2022)

“The Civil Court held that there is an issue of fact as to whether the EUO scheduling letters were properly mailed to plaintiff’s assignor. While the address on the scheduling letters to the assignor matched the address on the NF-3 forms plaintiff had provided to defendant, it did not match the address set forth on the assignment of benefits form.”

” Moreover, we find, contrary to the determination of the Civil Court, that, since the address to which defendant mailed the EUO scheduling letters to the assignor matched the address contained on the NF-3 forms plaintiff provided to defendant, defendant established, prima facie, that the letters had been properly mailed to plaintiff’s assignor”

To beat this motion, Assignor would have had to provide an affidavit that his/her address was found on NF-2 (s)he signed and the NF-3 address had no basis in reality. And even then, if the notice was mailed to the PI attorney, the assignor may lose on agency theory.

Now let me share some reality. With an attorney of 20% and a standard NF bill (no retainer), I am not going out of my way to disrupt Defendant’s summary judgment motion. At $450-$650 per hour, the assignor will be located and will sign the appropriate affidavit if the facts fit it.

EUO’s and bust statements May 8, 2022

Charles Deng Acupuncture, P.C. v Titan Ins. Co., 2022 NY Slip Op 50300(U)(App. Term 2d Dept. 2022)

“Under CPLR 4518 (a), a business record—a “writing or record” that is “made as a memorandum or record of any act, transaction, occurrence or event”—will be admissible as proof of the acts, transactions, occurrences or events recorded, if the court finds that the record “was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.” A transcript is a record of words that were uttered; while those words may describe an event, transcripts are generally not made as a memorandum or record of the event described. Here, defendant did not show a sufficient basis to admit counsel’s hearsay statements or that these transcripts should otherwise be treated as admissible pursuant to CPLR 4518 (a). Indeed, even if the transcripts could be treated as a “memorandum or record” of a nonappearance, rather than of a statement, there is no basis on this record to find that the record “was made in the regular course of any business” or “that it was the regular course of such business to make” a transcript as such a “memorandum or record” of a nonappearance (CPLR 4518 [a]).”

“We note that, while CPLR 3117 specifically permits deposition transcripts to be admitted into evidence at trials under certain circumstances, the CPLR is silent when it comes to EUO transcripts. To use a deposition transcript as evidence in chief at trial, as defendant attempted to use the EUO transcripts here, one of the requirements of CPLR 3117 (a) (3) must be met. Even if the transcripts at issue were to be treated as EUO transcripts notwithstanding that no examination took place, since, here, there was no showing that any of the grounds to permit the use of a deposition transcript were met, we need not decide whether CPLR 3117 (a) (3) can be extended to the use of EUO transcripts.”

“As defendant relied exclusively upon the transcripts of the “bust” statements to prove, at trial, that plaintiff failed to appear at the EUOs, and those transcripts were not properly admitted into evidence, defendant did not sustain its burden of proving that plaintiff had failed to appear for EUOs.”

“We note that, while CPLR 3117 specifically permits deposition transcripts to be admitted into evidence at trials under certain circumstances, the CPLR is silent when it comes to EUO transcripts. To use a deposition transcript as evidence in chief at trial, as defendant attempted to use the EUO transcripts here, one of the requirements of CPLR 3117 (a) (3) must be met. Even if the transcripts at issue were to be treated as EUO transcripts notwithstanding that no examination took place, since, here, there was no showing that any of the grounds to permit the use of a deposition transcript were met, we need not decide whether CPLR 3117 (a) (3) can be extended to the use of EUO transcripts.”

“As defendant relied exclusively upon the transcripts of the “bust” statements to prove, at trial, that plaintiff failed to appear at the EUOs, and those transcripts were not properly admitted into evidence, defendant did not sustain its burden of proving that plaintiff had failed to appear for EUOs.”

When the best evidence of a no-show is prohibited from being used at trial and, concomitantly on motion as it is not in affidavit form, does this mean the requisite proof to prove an EUO no-show has reached the so-called impossible level?

The one orthopedist rule April 18, 2022

Abdelfattah v Trevicano,2022 NY Slip Op 02383 (2d Dept. 2021)

“The defendants moved, inter alia, to direct the plaintiff to comply with the July 2019 [*2]order by submitting to additional medical examinations by specialists of defense counsel’s choosing. The plaintiff opposed, contending that the defendants could not direct the plaintiff to submit to a medical examination by a second expert. In the order appealed from, dated December 16, 2019, the Supreme Court, inter alia, granted the defendants’ motion to the extent of directing the plaintiff to submit to a medical examination by Dr. Miller, who previously examined the plaintiff. The defendants appeal from so much of the order as required them to designate Dr. Miller as the doctor who would perform the additional examination.

CPLR 3121(a) provides that where the physical condition of a party is in controversy, “any party may serve notice on another party to submit to a physical . . . examination by a designated physician.” There is no restriction in CPLR 3121(a) limiting the number of medical examinations. However, a defendant seeking an additional medical examination must demonstrate the necessity for it (see Harris v Christian Church of Canarsie, Inc., 147 AD3d 818, 818). A plaintiff may challenge a defendant’s choice of an examining physician based upon a claim of bias against the plaintiff or his or her attorney by the designated examining physician or prejudice against the plaintiff if that examining physician is allowed to testify at trial (see Lewis v John, 87 AD3d 564, 565).

Here, the plaintiff does not dispute the need for an additional medical examination. However, the plaintiff has demonstrated that he would be prejudiced by permitting a second board-certified physician to examine the same part of his body and to produce a second defendants’ medical examination as to the same physical condition that was reported on by Dr. Miller before the spinal fusion, which would enable the defendants to have a second physician of the same specialty testify against the plaintiff for the same physical injury (see Vailes v Molloy College, 2019 NY Slip Op 33931[U], *3 [Sup Ct, Nassau County]; Ocampo v City of New York, NYLJ 1202573727112 [Sup Ct, Queens County]).

Moreover, the defendants have not demonstrated the necessity for permitting the additional medical examination to be performed by a physician other than Dr. Miller, a board-certified orthopedic surgeon. The plaintiff notified the defendants of his allegation that he needed spinal surgery in his bill of particulars dated October 12, 2017, which was served before the defendants chose Dr. Miller to conduct the first medical examination. The defendants did not provide any reason that it was necessary for a different physician to conduct the additional medical examination after the spinal surgery. Since the plaintiff has demonstrated that under the circumstances presented here, permitting an additional orthopedic surgeon to examine and produce a second defendants’ medical examination report on the same body part previously examined by the defendants’ initially selected orthopedic surgeon, who could then testify at trial, would result in prejudice against him, the Supreme Court providently exercised its discretion in directing the plaintiff to submit to a medical examination by Dr. Miller, who previously examined the plaintiff.”

This has a direct application to PIP. The reasons being that it is often the case that PIP orthos testify in a BI trial. It therefore begs the question whether it is proper to have multiple othopedists perform an IME on an Assignor.

On a pure PIP side, the occurrence could happen where multiple exams become necessary, and should a carrier have the opportunity to show case the findings of two board certified ortho that lead to the conclusion further treatment is not warranted or that the EIP has reached their pre accident condition?

Untimely 4404(a) motion April 18, 2022

Galarza v Heaney, 2022 NY Slip Op 02395 (2d Dept. 2022)

Court reinstated a 1.2 million dollar verdict. You ask why?

“The Supreme Court should have denied the defendants’ motion pursuant to CPLR 4404(a) as untimely, as it was made more than 15 days after the jury verdict was rendered, without good cause shown for the delay”

The trick here is to ask the Court once the jury leaves to set forth a briefing schedule. If not possible, work overtime to get the motion out. If still not possible, make sure you appeal from the judgment and perfect off an appendix if need be. This was a disaster.